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THE AMERICAN 
BANANA COMPANY 



An account of -the operations of Herbert L. McConnell in planting banana 

lands on the Sixola river, and of his acts in Ccsta Rica and Colombia 

(later Panama) relating thereto, with an explanation and copies 

of documents and correspondence. Also an account 

of the boundary controversy between 

the nations mentioned. 



B. W. PALMER 



33 

t 



PRIVATELY PRINTED 



BOSTON 

Geo. H. Elljs Co., Printers, 272 Congress Street 

1907 



DEC le m^ 



.X37T/3 



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*' •X 



CONTENTS. 



PAGE 
iNTRODtrCTOET EXPLANATION i 

Chapter I. — H. L. McConnell Letters: 

Important Letters from and to H. L. McComiell A 

Chapter II. — Agreement of H. L. McConnell not to compete, etc.: 

Agreement for the Formation of the Camors-McConneU Com- 
pany and Agreement of H. L. McConnell not to compete 
with said Company 1 

Chapter III. — The Romero Concession: 

Copy of the Romero Concession 6 

Transfer of Romero Concession 8 

Suspension of Romero Concession 11 

Refusal of Panama to recognize Romero Concession 12 

Licenses to plant so-called (McConneU's only Titles) 14 

Chapter IV. — The American Banana Company: 

Prospectus of the American Banana Company 23 

Certificate of Incorporation of the American Banana Company 26 
Assignment from H. L. McConnell to the American Banana 

Company 30 

Transfer in Bocas from H. L. McConneU to the American Ba- 
nana Company 32 

Chapter V. — Injunction Proceedings against H. L. McConnell in the 

United States Circuit Court: 
Opinion of Judge Toulmin granting Preliminary Injunction 

against H. L. McConnell 36 

Opinion and Judgment of the United States Circuit Court of 

Appeals, affirming Judgment of Circuit Court 43 

Testimony of John B. Camors 45 

Decree of Judge Toulmin granting Perpetual Injimction ... 52 
Perpetual Injunction 53 

Chapter VI. — Correspondence with and Action of the State Depart- 
ment OF THE United States: 

Preliminary Letters 55 

McConneU's First Memorial 71 



Further Correspondence and Attempts to obtain Modus 

Vivendi from the Government of Costa Rica 85 

Communication of H. L. McConnell to the Secretary of State 

of Costa Rica, dated April 3rd, 1905 91 

Letter of JMinister Astua Aguilar dated April 12th, 1905 ... 93 
Letter of Everett P.Wheeler relating to McConnell's Second 

Memorial 132 

McConnell's Second Memorial 135 

Fiirther Correspondence 152 

Letter of Minister Astua Aguilar dated March 3rd, 1906 . . . 154 

Letter of Minister Root dated April 16, 1906 163 

Letter of Minister Luis Anderson dated May 26th, 1906 . . . 170 
Memorandum of Storey, Thorndike, Palmer & Thayer on the 

Law of de jure and de facto Jurisdiction 178 

Chapter VH. — Legal Procedure in Costa Rica: 

Acquisition of the Astua Denouncement 185 

McConnell's Power of Attorney 190 

Decision of the Court of Contencioso Administrativo rejecting 

McConnell's Objections 192 

Decision of the Supreme Court aflfirming above, dated 13th of 

October, 1905 193 

Decree of the Com't of Contencioso Administrativo authorizing 
and directing the Execution of a Deed to the Northern 

Railway Company, dated January 26th, 1906 197 

Protest of McConnell to Same 200 

Deed of the Lands covered by the Astua Denoimcements to the 

Northern Railway Company, dated 14th March, 1906 . . 202 
Legal Procedure through which the Northern Railway Com- 
pany obtained Possession of the Lands in Costa Rica in- 
cluded in the Astua Denouncements on which McConnell's 

Plantations lie 211 

Decision of the Supreme Court authorizing the Same .... 223 

Chapter VIII. — McConnell's Agitation in Panama in the Fall of 1906: 
McConnell's Memorial addi'essed to the National Assembly of 

Panama on the Subject of the Jurisdiction of the Sixola 

Lands 226 

Open I;etter on the Same Subject 244 

Reply to McConnell's Memorial by R. J. Alfaro (representing 

the Government) 248 

Report of a Committee of the National Assembly in Favor of 

McConnell .258 

Final .Action of the National Assembly of Panama rejecting 

McConnell's Memorial 263 

Official Correspondence showing the Location of the Status Quo 

Line of Jurisdiction between Costa Rica and Colombia . 264 



Ijetter of Julio Rengifo dated February 22nd, 1894, promising 
that Concessions of United States Citizens in the Disputed 
Territory would be respected bj^ Colombia 267 

Chapter IX. — Explanation of Laws of Colombia and Panama BELATiNf? 

TO THE Cultivation of Unoccupied Public Lands: 

Extracts of the Laws cited by MoConnell 273 

Opinion of Eusebio A. Morales on the Same 274 

Decree No. 92 of 1881 suspending the General Laud Laws of 

Colombia from Operation in the State of Panama .... 276 
Resolutions of Colombia showing Decree No. 92 of 1881 still 

in Force 277 

Decree No. 4 of 1903 showhig the Laws in Force in the Repubhc 

of Panama 285 

Executive Resolution of Panama dated July Uth, 1906, 

showing Decree No. 92 of 1881 in Force until Passage of 

Law No. 61 of 1904 285 

Law 61 of 1904 suspending all Proceedings for the Acquisition 

of Public Lands in Panama 288 

Law 57 of 1887 showing Codes in Force in Colombia .... 289 
Law 61 of 1874 comprising Statutes for Denouncem.ent of 

Unoccupied Lands in Colombia 290 

Law 48 of 1882 supplementing Same 293 

Decree No. 832 of 1884 relating to Law 61 of 1874 and Law 48 

of 1882 296 

Circular No. 94, dated October 15th, 1884, relating to above 

Laws 303 

Various Resolutions showing Operation of the above Land 

Laws in Colombia 309 

Forms for Procedure under above Land Laws of Colombia . 312 
Same , 314 

Chapter X. — The Boundary Controversy: 

Letter of Professor Edward Seler on the Boundary Dispute 

between Costa Rica and Colombia 323 

MAP showing Various Historical Boundary Lines between Costa 

Rica and Colombia End of Volume 



INTRODUCTORY EXPLANATION 

{The references at the bottom of the pages are to this publication). 
FOHMATION OF CaMORS-McCoNNELL COMPANY 

HERBERT LEE McCONNELL, of Mobile, Alabama, had for a num- Firm of 
ber of years been engaged in growing, importing and selling bananas. M^c^nneu 
On the 22nd of July, 1899, he combined his business with others, and & Company, 
became a partner in the firm of Camors, McConnell & Company. His 
partners in the firm were Kroesman, Braden & Company, John B. Cam- 
ors, Victor Camors, and possibly others. This firm engaged actively 
in the business of growing bananas and tropical fruits in Bocas del Toro, 
then under the jurisdiction of Colombia, now of Panama, and in selling 
the products in Mobile, New Orleans, and other places in the United 
States, and buUt up a large and thriving business mth good credit, a 
good name, and a valuable good-wiU.' 

On the 8th of December, 1899, the firm of Camors, McConneU & Com- Agreement to 
pany agreed to sell its business, good-will and property to Camors-Mc- M™onn"i°"' 
ConneU Company, a corporation to be organized under the laws of New Company, and 
Jersey, for the consideration of $40,125 par value in stock, and in the compete, 
same contract A. W. Preston agreed to buy from the partnership one- 
half of the same stock or $20,125 par value, for $30,000. The partner- 
ship, therefore, were to receive $20,000 in stock worth $30,000, and $30,- 
000 in cash for their business, good-will and property, making a total con- 
sideration of $60,000 in value.^ As the tangible assets of the partnership 
were valued at $30,000, the consideration to be paid for the good-will was 
$30,000.' 

In order to render effective the transfer of the good-will, H. L. Mc- 
Connell and the other partners of Camors, McConnell & Company cove- 
nanted and agreed in the same contract that they would "not, either in- 
dividually or by or through a corporation jointly or severally, directly 
or indirectly, engage in the growing or importing or selling of tropical 
fruits" in competition with Camors-McConnell Company.* 

The Camors-McCormell Company was formed on the 12th of January, 
1900, all the property, effects, good-will, and business of the partner- 
ship of Camors, McConnell & Company were transferred to it, the consid- 
eration was duly paid, and McConnell received his proportion thereof 
in stock and cash. According to the terms of the contract, McConnell 

'Deposition of J. B. Camors, page 45; ^ page i. 3 pagg 48. « Page 3, par. 5th. 



Receipts of 
McConnell 
from Camors 
McConnell 
Company, 



was elected president and general manager of the Camors-McConnell 
Company and served m that capacity fron. the formation of the cTm 
pany imtil January 21st, 1904. 
From the organization of the company until February 18, 1904 shortiv 

received $12,950 for salary and $77,666.25 for dividends aggregating $90 
616, all withm a penod of four years. This was certainly a very hS" 
some return on the amount of capital invested by McComieU^n the Tuie^t 

tt.L .7:f 'y- ''' ''''' *^- -d^- accession of wealth 
by one who had theretofore been in very moderate circumstancerand 
engaged m small affairs, turned his head. ^cumstances, and 

As president and general manager of the Camors-McComieU Com 
pany, he had complete control and direction of aU its busTnerboth" 
Bocas del Toro where the plantations of the company were sTtuated and 
where . obtamed its supplies of tropical fruits, and In the iSd States 
where the same were sold. ^'^u^eu ocates 



He begins 
planting on 
the Sixola 
River and 
acquires the 
Romero 
Concession. 



Sixola River 
the jurisdic- 
tional 
boundary. 



Impossibility 
of obtaining 
title to 
Sixola Lands. 



McConnell 's Secret Plans 
Early in 1903 McConnell began secretly to plan to engage in the business 
of planting and dealing in bananas on his own account. In AprH 190^3 
began planting tracts of land on both banks of the Sixola^^ ' He 
obtained from one Ricardo Roman Romero, a Colombian subject a con 
cession ^nore f.illy explained hereafter), pm-porting to gi e le conces" 
sionaire the right to build a railroad from the right (or TouthX bank 
IcL^dtnT^^ Caribbean%ei.« TZ^^ 

was dated April 2, 1903, and on May 1st McConnell obtained an assign 

dot; T"^ ?;' '" '' °"^ ^"^^^^^ d°"-« t« Romero five huXd 
Mn n r'/?'' "'^° ^^"^ ^°"^^ ^^^«^^«t, and having kgreed to pav 
Mot five hundred dollars more if the port mentioned in the on Lbn 
sb^uld prove a success. It is safe to say that he has not paid ^ Suer 

The Sixola River divides the jm-isdictions of Costa Rica and Panama 

S W of' T^ ^' ''^ *™^ ^°"^^^^^'- -^ ^- expTirriate ' 
riiis hne of division has existed for at least one hundred years and the 
territory on the left or north banl. of the Sixola has alwarSen unJer 

tha L !nL ; ^:^'^^^''' ^'^^^d ^P"I 23, 1903.= Furthermore, he knew 
As tn thM . r. *''^ '^'^ "^'^^ '' '^'' ^^^d^ °^ -either side of he rive^ 
As to the lands on the south side of the Sixola, the general laws of ColombTa 



relating to the denouncement of unoccupied public lands were not in force 
in the Department of Panama. This was brought to McConneU's atten- 
tion by his attorney, R. K. Warren, in a letter dated July 8, 1903, in which 
the latter, after consulting McConneU's counsel, said, "It seems that under 
the present law all Panama province lands are open and title to same can- 
not be secured except by special act or coniirmatiou by special dispensa- 
tion from Bogota."^ As to those on the north side, McConnell himself stated 
that he understood that Costa Rica retained possession as far as the noi'th 
bank of the Sixola, and that titles to lands along navigable streams and 
the ocean front remained in the government. (Letter to F. J. Alvarado 
& Co., Port Limon, April 23, 1903,' letter to T. D. Nettles, same date.) 
In fact, McConnell actually opposed the acquisition of these very 
lands in Costa Rica by another person, on the ground that the title to the 
navigable mile along the river remained in the government of Costa Rica.'" 

Besides this, the soldiers of Costa Rica actually stopped McConneU's First 
operations when he first went on the land in that country, and it was only of CMta Rioa. 
after he had made some "temporary arrangements" with the commanding 
officer that he was permitted to proceed. This permission, however, as 
McConnell expressly admits, was contrary to the commanding officer's 
orders, and the work was liable to be stopped again at any time. (Letter 
McConneU ^to Nettles, April 23, 1903.)^ It apparently was at least in- 
terrupted again soon, for McConneU wrote to Sefior Valdes on the 28th 
of July, 1903, that the Costa-Rican government had refused to permit a 
commissary on its side of the river, and had objected to McConneU's 
landing laborers at Gadocan." 

McConnell used his' position in the Camors-McConnell Company and McConneU's 
the organization, employees, money and property of that company in clmors- 
many ways in supporting and advancing his new enterprise. The local McConneu 
manager of the Camors-McConnell Company at Bocas, Robert H. War- Ms'^rivate™ 
ren, who was vmder the direction and control of McConnell as president, enterprise, 
became McConneU's attorney in fact and representative at Bocas. Mr. 
Warren used the funds of the Camors-McConnell Company to a very 
considerable extent in pa5'ing the expenses of McConneU's planting and 
otlier operations, but the funds were subsequently returned to the 
company. Mr. Warren devoted a large amount of time daily to 
McConneU's private interests. He visited the Sixola plantations several 
times. He sold and leased launches and fighters belonging to Camors-Mc- 
Connell Company to McConneU, for use in connection with the Sixola 
plantations. Even the suckers for plantiag bananas at Sixola were ob- 
tained from Camors-McConneU Company's plantations.*^ 

« Letter, Warren to McConnell, July 8th, 1903, page J. 

'Letter, F. J. Alvarado & Co., April 23d, 1903, page C. 

■» Page 192. " Letter to Senor Valdes, July 28th, 1903, page L. 

" Testimony of Warren and Herbert in the injunction suit and letters of R. H. Warren. 



McConnell was able to carry on this work without objection in the 
first instance, because he created or permitted the impression among the 
employees of the company at Bocas that the new work was for account 
of the Camors-McConnell Company. Later, when this appeared to be 
untrue, it created dissension among the employees at Bocas, and caused 
the resignation of one of the principal ones. He was not interfered with 
by the other officers of his company because his actions were kept secret 
from them." 

[It is true, however, that Mr. Minor C. Keith, vice-president of the United 
Fruit Company, became aware of his acts, and repeatedly endeavored to 
persuade McConnell either to desist or to declare that the new enterprise 
was to be for account of Camors-McComiell Company. Mr. Keith on 
several occasions reminded McConnell of his agreement, and called upon 
him to respect it. Mr. Keith made McConnell "most reasonable propo- 
sitions to induce me [McConnell] to withdraw from my intentions to plant 
Sixola, but I declined to entertain them until after I had ascertained defi- 
nitely whether or not Gadocan could be made a satisfactory port."]" 

McConnell boldly proceeded. In May and June, 1903, he caused 
five witnesses to appear before a notary in Bocas and make affida- 
vits, shomng that he had planted laud along the Sixola River. The 
exact description of the lands claimed is as follows: "lands that lie on 
both sides of the river Sixola in the jurisdiction from three miles up from 
the mouth of said river up to five miles of its course and an equal distance 
to the depth of the forest on each side of the river, thereby forming on both 
sides a perfect square.'"* These affidavits, defective and of no possible 
value, since the laws on which they were supposed to be based were not 
in force in Panama, constitute the only basis of title to any of the lands 
or cultivations now claimed by McConnell or the American Banana Com- 
pany. The cultivations actually made by McComieU extended over twenty- 
six miles up the said river, and were onty from 200 to 1,000 meters in 
width.^' 

The Romero concession required the concessionaire to file a plan of the 
proposed raihoad with the government of the Department of Panama. 
McConnell did so, and thereupon on the 9th of September, 1903, the gov- 
ernor of Panama stated that the concession had been given under a mistake 
of facts, and ordered that it be suspended. The concession authorized a 
raih'oad to run from the right bank of the Sixola River to Gadocan. From 
the plans filed, it appeared, however, that Gadocan lay to the north of the 

" Letter, McConnell to Warren, June 10th, 1903, page I. " Pages 14 to 22. " Page 33. 



Sixola River, and that the proposed raiboad was to run from the left bank 
of the Sixola to Gadocan. As the Sixola River formed the accepted boun- 
dary between the jurisdictions of Colombia on the south and of Costa Rica 
on the north, pending the determination of the permanent boundary be- 
tween the two nations, the governor of Panama declared that he had had 
no intention of granting rights in territory that was under the jurisdiction 
of Costa Rica, and therefore suspended the concession.'" 

In the mean time the same concession had come before the general gov- Declaration of 
ernment of Colombia at Bogota for approval. The said government passed of^^e'R^CTo 
upon the matter, and declared that the governor of a department had not concession by 
the power to grant such a priAdlege, since the power to do so was vested ° °™ "*" 
solely in the departmental legislatm-e under the constitution and laws of 
Colombia. Therefore, the general government of Colombia declared the 
concession to be A'oid." 

McCoimell still continued his planting and began to clear a way for his Further 
railroad. Upon learning of this, the Costa-Rican government again sent ™f*^g^4^R°ca 
officials in September, 1903, to investigate McConnell's actions •within the 
jurisdiction of Costa Rica, and they required him to desist from further 
trespassing in Costa-Rican territory.'^ 

On September 24, 1903, McConnell wi'ote to Secretary Hay. He stated McConneii 
that he had bought a railroad concession from a Colombian citizen, that secretary Hay. 
the railway would run through territory awarded to Colombia by Presi- 
dent Loubet, but over which Costa Rica still retained jurisdiction until 
the boundary line should be fixed by a joint commission, and that the 
government of Panama was unaware of the existence of such an under- 
standing between the Colombian government and Costa Rica when the 
concession ia question was issued and when transferred to McConnell.'" 

(Note. — It may be obsei^ved, in passing, that McConneU neglected to 
advise Secretary Hay that the Colombian government had expressly 
declared his railroad concession to be invalid, and also that his state- 
ment that the government of Panama was unaware of the existence of 
the boundary understanding is directlj' contrary to the fact shown by 
Governor Duran himself. Governor Duran suspended the operation of 
the railroad concession on the sole ground that the line of the railway 
lay in territory that was under the jurisdiction of Costa Rica, and expressly 
stated that, if the true location of the railway had been known on the 
date of the contract, the government would not haA^e entered into the 
same. McConneU also said that Governor Duran had declined to approve 
the plans and profile of the proposed railroad, unless subject to Costa 

"Page 11. 17 Page 10. ■» 

"McConneU to Secretary Hay, September 24th, 1903, page 55. 



Rica's temporaiy jurisdiction. This is certainly a veiy inadequate man- 
ner of stating what Governor Duran had actually done; to wit, suspended 
and really annulled the entire contract.)'" 

McConnell did not in this letter claim the right or title to any land, but 
stated that the fruit which he had planted in the river land would be lost 
unless the port of Gadocan were improved and the proposed railroad built.^" 
It is to be obsei-ved and remembered that even the Romero Concession 
contains no authority whatever to open, use or improve the port of Ga- 
docan, or to erect, maintain or use any of the constructions necessary, 
and M'hich McConnell contemplated, for that purpose. In other words, 
the utmost claims of McConnell, — to wit, the right to build a raUroad 
under the railroad concession, and rights in unoccupied land arising from 
actual cultivation thereon, — did not include the further right which, he 
states, was essential to his whole enterprise. The importance and neces- 
sity of the harbor improvement is clearly set forth and dwelt upon in his 
letter." 

The position of the Costa-Rican government in claiming jurisdiction 
and in preventing McConnell from surveying, planting, erecting buildings, 
building the railroad, and improving or using the port without that gov- 
ernment's consent, is also clearly stated. Certainly, McConnell never 
had anj^ misconception as to this government's attitude from the very 
beginning, and it never did anything more than he had always antici- 
pated and expected. 

Upon receipt of this letter the State Department communicated with 
its representatives, both at Bogota and San Jose." Minister Merry at the 
latter place reported that the territory between the Sixola and Gadocan 
was disputed, and that Costa Rica did not then claim jurisdiction and 
had not demanded that McConnell's work be stopped under threat of 
confiscation or otherwise.^^ This statement of facts thus reported through 
Minister Merry to the State Department was not strictly accurate, since 
Costa Rica had stopped McConnell's work on the north side of Sixola, 
and had claimed and exercised jurisdiction there. However, it is clear 
that after these communications McCoimell was not further interrupted 
for some time. It is apparent that this quiescence on the part of Costa 
Rica was really out of deference to the wishes of the United States, coupled 
possibly with a desire to escape responsibility, but was not in any sense 
a renunciation of the rights and duties of sovereign jurisdiction. 

He continued his operations uninterruptedly for eight months. He 
claims to have planted 5,000 acres of land with about 500,000 banana 

2" Page 56. 21 gee also page six . 22 page 58. ^^pageSS. 



plants, and to have spent in such work upwards of $88,000. He claims to 
have cut and cleared a waj- for a railroad of about twenty-five rmles in 
length.^ He actually planted 1,469 hectares, about 3,630 acres, and un- 
derbrushed 161 hectares, about 398 acres additional, on the north side of 
the river.^" 



FORSIATION OF THE AmEHICAX B.\Js"AXA CoMP.ANT. 

On June 18, 1904, McConneh caused to be formed a corporation imder 
the laws of Alabama, called the American Banana Company, mth a cap- 
ital of $750,000, for the purpose of engaging generally ia the banana 
business.® 

He had intended to form such a company from the very beginning, Agreement 
but refrained from doing so temporarily, "on account of Costa Rica's Y^*^»*« 

° ^ ^ ^ Amencan 

jurisdiction and the consequent difiRculty of importing railroad iron. Banana Co. 
machinery for harbor improvements, etc." -' 

On the 24th of June, 1904, he executed an assignment to the said corpora- 
tion purporting to transfer to it the Romero concession (which was void), 
all his titles in the lands claimed by him on the Sixola River (but he had 
no titles whatever to the said lands), and the cultivations for $250,000 in 
stock, reser^ong, ho'never, the cost of cultivations." Under the reservation 
he caused the corporation to pay back to him the entire cost and expense 
that he had incm'red, to vAt $65,672.80. He obtained cash subscriptions 
from others for a very large amotmt, about $300,000. He made no actual Transfer to 
transfer to the corporation in Panama untU the 31st of July, 1905, when, *•»« American 
imder deed No. 184 before Notary Adolfo Cervera, his attorney executed an 
instrument pm'portulg to transfer to the American Banana Company for the 
sum of $25,000 the following; one banana plantation of 3,000 manzanas * 
of land lying on both sides of the Sixola River, from the fourth nnle for 
about twenty-six miles with a depth varjdng from two hundred meters 
to one thousand meters, several wooden b^iildings with zinc roofs, some 
materials for construction, many thatched huts (in all about fortj- biuld- 
ings), ten head of cattle, ten pigs, and several fowls, two gasolene launches, 
"Sixola" and "Messenger," three wooden hghters, some pro^osions, stores, 
and fm-niture in the said buildings, and some tools, machinery and agTi- 
ciiltm-al implements, five iron cars, and all rights that he had acquhed under 
the laws of Panama to the adjacent lands, and all rights in Adrtue of the 
Romero concession.^* 

* A manzana is about 2J acres. 

-* Pages 76, 79. --^ See copy of map- of W. L. Collins, McConneU's engineer, opposite frontispiece. 

^ Charter on page 26. 

* Letter, McConnell to Otto F. Bolder, September 19tli, 1903, page N. 

2' Page 30. 28 Page 32. 



The Voyage of the "Orn." 

On the 9th of July, 1904, McConnell shipped by the steamer "Orn" 
from Baltimore 916 tons of steel rails and 26,000 steel ties with appurte- 
nances. Ou the 5tli of August, 1904, he also shipped by the schooner 
"Oscar G " from Mobile about 50,000 feet of lumber, five flat cars, and some 
general merchandise and provisions and tools of the value of about $2,500.^* 

The steamship "Orn" cleared from Baltimore to Bocas del Toro. Upon 
arriving there, she cleared for Gadocan on July 22, 1904, and probably 
arrived there the next day.^" 

'When the "Orn" arrived at Gadocan, there were present there some 
customs officials of Costa Rica from the established port of Limon who 
forbade the ship to unload because Gadocan was not a legal port, and 
such act would be in violation of the customs laws of Costa Rica. The 
officials were, however, prevailed upon to wait until the government of 
Costa Rica in San Jose could be communicated with, and in the meantime 
not to prevent the unloading of the cargo. Communication was held with 
San Jose on the subject, and the government forbade the entrance of the 
cargo.'' During the interval, however, about two-thirds of the goods in 
tonnage, but three-quarters m value, about $60,000 worth, had been un- 
loaded. WhUe unloading, one of the fighters was sunk, and McConnell 
claims that the customs officials went so far in the performance of their 
duties as to forbid his saving the material sunk with it. The officials of 
Costa Rica took possession of the part of the cargo which had been landed.'* 

On the 12th of August the "Orn" proceeded to Bocas del Drago, and 
landed there the remainder of her cargo. The customs officials of Panama 
imposed the usual import duties on the same, to the amount of $10,149.90, 
Colombian currency. In default of payment the goods were seized, and 
aftei-wards sold by the same officials.'' 

The schooner "Oscar G" landed her cargo at Bocas del Drago, which 
suffered the same fate.'* 

2" Pages 80, 81. =" Page 66. 

^1 At this very moment neKotiations to settle the national boundary were being carried ou between 
the official representatives of Costa Rica and Panama at the city of Panama, and the questions raised by 
the arrival of the "Orn" were seriously involved in that controversy. (See the "Memoria" of the Sec- 
retary of State and Foreign Affairs to the National Assembly of Panama, 1906, p. Iv.) Up to that time 
McConnells' acts in planting some unoccupied lands and erecting unimportant huts had not introduced 
any international complications. His acts of trespass raised simple questions of private right which 
Costa Rica, out of deference to the wishes of the United States, had refrained from pressing, but without 
in any way resigning or qualifying its right of jurisdiction. The arrival of the "Orn," however, propos- 
ing to land under claim of authority from Panama and to import merchandise for the purpose of 
constructing a railroad under a Colombian concession, all contrary to Costa Rica's laws, created a very 
different situation. It was one which Costa Rica could not ignore, since the very omission to act would 
have constituted a renunciation of jurisdiction. Costa Rica had always firmly maintained that theLoubet 
Award was void, and had never accepted it in any way. Its representative was insisting upon this same 
position in the pending negotiations, and it is readily seen that the renimciation of jurisdiction over 
territory which could only become subject to Panama's jm-isdietion through the operation of the l.onbet 
Award, would seriously have compromised Costa Rica's claims. Therefore, that country was compelled 
to forbid the "Om" to laud, without any regard to the private rights involved or the unofficial wishes 
of the United States. The reasons for this conclusion can readily be understood after a study of the 
history of the boundary controversy explained on page .xx. The propriety of Costa Rica's action was 
shown by the action of Panama in disclaiming jurisdiction over the land north of the Sixola. (Resolu- 
tion No. 28, August 2nd, 1904. page 95. i'tlrn. See also page ISS.) 
■sPageSO. 33 Pages 33, 235. " page 81. 



Second Appeal to the State Department 

McConnell thereupon again appealed to the State Department, and costa Rioa's 
further official correspondence ensued. This brought a clear statement q^^I^" 
of Costa Rica's position and of McConneU's acts in a letter from Hon. deaned. 
Jose. Astua Aguilar, Secretary of Foreign Relations, dated September 21 , 
1904. The Minister stated that the land north of the Sixola was under 
Costa-Rican jurisdiction, and that no one could obtain any right, title, 
or interest in the said lands except through title derived from Costa Rica; 
that McConnell, without anj^ right, had taken possession of a large area 
of land, cut down trees, planted cidtivations, constructed a tramwaj', 
and violated the customs laws. Costa Rica had sent, not soldiers as Mc- 
Connell had misrepresented to the State Department, but customs officials 
from the nearest established port, to enforce the customs laws and to put 
an end to the acts of usurpation. ^^ 

In the meantime McConnell visited Panama, and after a month of jicCoimeu 
patient effort failed completely in obtaining either of the tM-o objects "ii'a°^°'a- 
sought b}^ him: &'st, the recognition of the Romero concession; second, 
a communication of remonstrance from the govermnent of Panama to 
Costa Rica.^** On the first point the government of Panama absolutely 
declined to recognize the Romero Concession as valid. (Resolution, 14th 
of September, 1904.)" On the second, the government declined to de- 
mand a cessation of interference on the part of Costa Rica in McCoimeU's 
works, giving as one reason the fact that the question of boundaries 
was even then being discussed between the representatives of the two 
nations. (Resolution of Foreign Relations, dated September 22, 1904.)^* 
Incidentally, McConnell did all in his power to prevent the representa- 
tives of Costa Rica and Panama, then in Panama, from agreeing to a 
settlement of the boundary question.^^ 

Minister Merry advised McConnell to apply to Costa Rica for peraiission McConneU ii 
to continue his work. For this purpose he and Adolf Dolder, after leaving ®*° ■'°^^' 
Panama, visited San Jose and were pleasantly received by the government 
officials, to whom he was presented by Minister Merrj', even though these 
same officials knew that McConneU had just been urgmg action at Panama 
prejudicial to Costa Rica. He was, however, unsuccessful. (Despatches 
of Minister Merry, dated October 9th and 15th, 1904.)" 

» Page 63. ^- Page 67. ^ Page 12. 3s page 14. 39 pgge 956. " Pages 65. 67. 



The Circuit Court of the United States enjoins McConnell 

FROM doing any BanANA BUSINESS. 

On the 30th of November, 1904.. Camors-McConnell Company brought 
an action against McConnel] m the Circuit Court of the United States 
for the Southern District of Alabama. The object of the suit was to 
compel McConnell to respect his agreement which he made when the 
said corporation was formed. After a prolonged and bitter contest the 
court granted an injunction forbidding McConnell to be an officer or man- 
ager of the American Banana Compaii)^ or to engage in the business of 
growing, buying or selling bananas. In rendering its decision, the court 
significantly said: — 

" 'If there is one thing more than another which is essential to the 
trade and commerce of this country, it is the inviolability of contracts 
deliberately entered into; and to allow a person of mature age, and 
not imposed upon, to enter into a contract, to obtain the benefit of it, 
and then to repudiate it and the obligation which he has undertaken 
is prima facie, at all events, contrary to the interest of any and every 
country.' "" 

The Court thereupon (31st August, 1905) granted a preliminary injunc- 
tion against McCoimell, which was affirmed on appeal, by the United 
States Circuit Court of Appeals for the Fifth District (30th October, 1905)." 
The case was then tried upon its merits, testimony was taken, and the 
injunction made permanent on the 9th day of June, 1906. The Court 
decreed that 

"Herbert L. McConnell he and he is hereby perpetually restrained and 
enjoined from being an officer of the American Banana Company, and 
from ynanaging, directing, or controlling its affairs, and otherwise from 
directly or indirectly, either individually or by or through a corporation, 
engaging in the growing of tropical fruit in competition with the com- 
plainant" (Camors-McConnell Company), "or in the importing or sell- 
ing of tropical fruit anywhere in the United States in competition with the 
complainant," etc., etc.*^ 

McConnell's First Memorial to the State Department.^'' 

On the 21st day of December, 1904, McConnell filed a petition with the 
State Department at Washington. In it he claimed that he had obtained 
full title in the lands planted by him under Law 61 of 1874 and Law 

" Copy of opinion on p. 36. 140 Federal Reporter, 412. 

<2 Page 43. 140 Federal Reporter, 9S7. « See pages 52, 53, 54. « Page 71. 



48 of 1882 of the Republic of Colombia, and stated that these laws had 
been adopted by the Republic of Panama. This viay have been one of 
the errors of his counsel, since McConnell must have known, from Ms long 
experience in Bocas del Toro and vicinity, that which was and is currently 
known there by all, to Avit, that no titles of anj' kind could be obtained to 
any pubhc or unoccupied lands there. All the lands in the state (after- 
wards the department) of Panama had been withdrawn from denounce- 
ment for many years, on account of the land grant ceded to the French 
canal companies, and for other pubhc reasons arising from the proposed 
construction of an interoceanic canal, and the very law cited by McConnell 
(Law 61 of 1874 to which Law 48 of 1882 is merely supplementary), was 
in 1881 expressly suspended from haAdng any operation in Panama.^" 

McConnell discussed at some length the boundary controversy between 
Colombia and Costa Rica, and expressed the wholly erroneous view of 
the real facts and of the true relations between the two nations that he 
has steadfastly, and to Ms great cost, maintained to the present time. 
This boundary controversy will be explained further on.^" 

As to the railway, he claimed the legal right to build a private rail- McConneu 

1 ^ ' ^ -\ ' l^ ± • c i. ^ i abaBdons the 

road over his land without any concession irom any govermnent, and ^oraero 
abandoned any further claim under the Romero concession.^' In concession, 
this connection it is important to observe that the lands planted by 
him, and which alone he could claim on any pretext whatever, were 
distant at least three miles from the port of Gadocan, and by limiting 
his claim to build the railroad as stated in his memorial, he abandoned 
the right to connect it with the port of Gadocan. As a matter of fact, 
the only work he actually did upon the railroad was at Gadocan, ex- 
tending from the coast inland and it did not lie upon or extend to any 
portion of the lands described in the affidavits of possession as mentioned 
above, or to any of those planted by him.^^ 

McConnell stated, "It was not until long after I had entered upon McConneii's 
these lands, and had expended large sums of monej^ in planting, ^c^'^at^g"'^""* 
that I had any intimation whatsoever that either government con- 
tended that there was any dispute over the boundary line between the 
two republics which would in any way affect the land that I was occupying." 
Previously in Ms memorial McConnell had slated that it was in April, 
1903, that he had first entered upon the lands."*^ 

In making the statement quoted, McConnell evidently forgot what he 
had written in the letter from Bocas to T. D. Nettles dated the 23rd of 
April, 1903, from which the following is an extract:— 

^ ChapterQ, page 273, especially Decree No. 92 of 1881, page 276 ; this decree is still in force, page 285. 
^8 Page XX. ■'' Page 75. ■** See map frontispiece. ^" Pages 78, 74. 



ThoNetties "I have iiot j'et arranged to do any planting, but have spent much 

a'hi "igle'* *^"^^ ^"^*^^ '"^' arrival here in exploring different sections of this coun- 

try and have finally determined that Sixola River is the proper place 
to plant, provided control can be secured and it is found that a port 
close by can be made a safe harbor. Several parties besides my- 
self are making an effort to secure the land and port, and it remains 
to be seen who will he successful. It was until some two and a half 
years ago disputed territory, when the President of France as arbi- 
trator decided in favor of Colombia and against Costa Rica. On 
account of the revolution in this country a joint commission has 
never been appointed to survey and fix the exact line. The terri- 
tory is therefore still under Costa-Rican jurisdiction, and that coun- 
try sent soldiers a few days since and stopped my work of securing 
the land, according to Colombian laws. Temporary arrangements 
were, however, made with the commanding officer for a continuance 
of the work, but, as that was contraiy to his orders, the work is likely 
to be stopped again at any time. 

"In addition to the com.plications named the C. R. government 
some years ago granted this land to an American in consideration 
of military services rendered. I expect to leave for Panama on 
this business Saturday, and may be there a week or two, but expect 
to return here before going to New York."^" 

McConnell also failed to remember his statements in his letter to Hon. 
John Hay, dated 24th September, 1903, in which he reiterated sub- 
stantially the foregoing statements, and also said : — 

"Costa Rica has on several occasions interrupted temporarily my 
work of surveying and planting, and refused to allow a commissary 
built on the north bank of the Sixola River or within the limits of its 
temporary jurisdiction, and I am forced to ship all supplies over the 
river bar, which is rough and dangerous both to life and property. Any 
shipments handled through Gadocan would be subject to confiscation, 
hence under such circumstances it is impossible to do anything towards 
the improvement of the port and the building of the railroad. The 
Colombian Government is, of course, responsible to me under the con- 
cession for any losses inflicted by the Costa-Rican Government, but 
I of com'se desire to work harmoniously with that Government. Fur- 
thermore, the payment for goods confiscated would not secure the end 
desired; namely, that of building the road and opening the port for 
vessels." ^^ 

It is clear that McCormell planted on the north side of Sixola River 
with the fullest knowledge of the jurisdiction of Costa Rica there. 
It is to be noticed that McConnell failed to advise the State Department, 

5" Full copy of this letter on page A. "Full copy of this letter on page 55. 



either that his concession had been declared void by the central govern- 
ment of Colombia or that it had been suspended by Governor Duran. 

For the acts of Costa Rica in interfering with his work, he demanded Damages 
$2,210,000 damages, although he claimed to have spent in the enterprise c^teRi^!^'' 
only $198,200. He asked the United States Govermnent to demand 
from both Costa Rica and Panama the release of the property seized, and 
that the memorialists, McConneU and the American Banana Company, 
should be permitted "to pursue the work of planting, cultivating, and 
developing the territoiy in question, including the completion of said 
tram or railway, the raising of the sunken materials, and the landing of 
those delayed, and of such others as may be necessary and appropriate 
at Gadocan, and in all respects continue the work of development and 
improvement upon which they have entered, free of and from any mo- 
lestation whatsoever by said govermiients or either of them."^^ 

It is to be observed that in characteristic fashion he wanted the United 
States govermnent to demand for him from the two nations more and 
greater rights than he had ever claimed. 

In his memorial he also stated that on the 18th of June, 1904, the Ameri- 
can Banana Company was organized, and through it a large number of 
other American citizens became interested with him in the enterprise. 
As already stated, it was on the 24th day of June, 1904, that McConneU 
executed an assignment of his lands, concessions, and plantations to the 
said corporation. His statement in the memorial is to be remembered 
when considering the representations which McConneU presented to the 
government of Costa Rica in which he claimed to be the sole planter 
and possessor of the said plantations. The purpose of his making 
and continuing in this false statement in Costa Rica will be understood 
when we come to consider the litigation that has taken place there.'^'' 

As a result of McConnell's memorial, Minister Hay requested Minister 
Merrj'- at San Jose to arrange a modus vivendi which would have the effect 
of saving McConneU and the American Banana Company from unnecessary 
and voidable losses."^ 

As a result of this request, extended communications took place between Negotiations 
McConneU and the government of Costa Rica in which all the incidents of ^1^^ ^^^ 
McConnell's entrance into Costa Rica and the actions of the Costa-Rican modus 
officials relative thereto were fuUy explained.^* Passing comment may 
also be made upon McConneU 's communication to the Secretaiy of State 
Department of Foreign Affairs, dated April 3rd, 1905, in which he says: "I 
should also state that in those uncultivated regions I saw no indications 

'2 Page 83. «» Page xviU. '^ page 85. « Pages 85 to 131. 



whatever that the Government of Costa Rica was not in accord with the 
interpretation of the decision as understood in the neighboring Republic 
as well as other countries. Furthermore, the Goverimient of Costa Rica 
did not advise me as to its attitude respecting those lands until my agri- 
cultural works had attained a great development."^" This also is hardly 
consistent with his oft-forgotten letter to Mr. Nettles, dated April 
23, 1903, in which he carefully explained that the land was under the 
jurisdiction of Costa Rica, that that government had actually exercised 
its jurisdiction by stopping such work, and that the same thing was 
liable to occur again. Although the foregoing inconsistency was not 
known in Costa Rica, the answer of Minister Jose Astua Aguilar to the 
same letter, under date of April 12th, 1904, is especially worthy of 
consideration. In it Minister Astua carefully and satisfactorily explains 
aU of Costa Rica's acts and position. This is conclusive, and no further 
answer of any kind is necessary.^" 

To the same effect is the statement of the same Minister Aguilar in his 
letter to Minister Merry, dated 3rd March, 1906, in which he states: "That 
the territory of Gandoca and the Sixaola river from the very bank of this 
river and of the Yurquin have been and are now subject to the sovereignty 
of Costa Rica, that Mr. H. L. McConnell has attempted without title, in 
virtue of his own will alone, by means of an occupancy which our 
laws and universal right qualify as the act of an usurper, to appropriate 
as lord and master a great area of that region; that the same gentle- 
man imported merchandise clandestinely by the unopened port of Gan- 
doca, for which he chartered ships wliich he caused to arrive at that point; 
that my government, in the exercise of the national sovereignty and under 
the necessity of inculcating respect for its laws, acted through the fiscal 
authorities to proceed against that unlawful action and smuggling, and 
notified Mr. McConnell that he could not possess or make use of the 
lands mentioned, since he had not acquired them in accordance with our 
laws."" 

The course of the negotiations is fully set out in the documents printed 
later, from which three main points are firmly established : — 

1st. That the State Department and the United States representatives, 
especially Minister Merry, exerted unusual efforts to procure benefits for 
McConnell. 

2nd. That the government of Costa Rica most sincerely endeavored to 
meet the cashes of our government, notwithstanding the many reasons 
influencing them to be offended with McConnell's acts, and 

55 Page 91. 58 Page 93. w Page 154, also pages 64, 160, 173. 



obtain modus 
Vivendi. 



3rd. That the negotiations were unsuccessful solely because of the ex- 
cessive demands and unreasonable attitude of McConnell himself. 

The truth of the fu-st statement is shown by the most casual examina- 
tion of the communications that passed between the State Department 
and Minister Merry. In fact, the latter became so zealous in behalf of 
McConnell's interest that Mr. Loords, as acting secretary, found it neces- 
sary to write Minister Merry that he should "avoid giving to the Costa- 
Rican government the erroneous impression that the Department is in 
any way committed in support of Mr. McConnell's claims, its attitude in 
fact being simply favorable to the preservation by means of a modus 
Vivendi of whatever property he may have." (Letter dated Washington, 
May 12th, 1905.)^' 

Proof of the same is further shown in Mr. Merry's letter of June 11, 
1905, in which he says, "It seems proper for the writer to state that no 
effort has been spared to obtain for Mr. McConnell a modus vivendi."^" 

In substantiating the second and third points, reference may es- FaUureto 
pecially be made to Mr. Merry's letter dated March 7, 1906, in which he 
advises Mr. Root that "Mr. McConnell was about reaching a modus vivendi 
which I had been instructed by the Honorable Secretary of State, Mr. 
Hay, to aid him in obtaining, when, over night, he decided to insist on the 
right to place an additional area under cultivation, thus changing the 
modus vivendi for a modus crescendi, and therein I cannot justly find fault 
with the Minister for declining. It was not, in fact, a claim in accordance 
with my instructions or with the intent of Mr. Hay." And also to the 
statement at the close of the letter of Mr. Aguilar to Minister Merry, dated 
3rd March, 1906."'' 



McConnell's Second Memorial to the State Department."^ 

Failing in his attempts to obtain & modus vivendi, McConnell filed a second 
memorial with the State Department on the 22nd of October, 1905. As a 
result, Secretary Root cabled to Minister Merry on the 27th January, 1906, 
in effect questioning the sovereignty of Costa Rica over the territory in 
dispute. In answer to wliich the above-mentioned letters of Minister 
Merry, dated 7th March, 1906, and of Minister Aguilar, dated 3rd March, 
1906, were sent."" 

58 Page 107. 59 Page 129. »» Pages 154, 161. " Page 132. 



Emphatic 
declarations 
by Secretary 
Root in favor 
of McConnell. 



Answers of 

Costa Rica 

and Panama 

denying 

Secretary 

Root's 

position. 



On the 19th of March, 1906, Secretary Root sent a further cable to the 
United States representative at San Jos6 and Panama, stating that an 
American citizen, meaning McConnell, and the American Banana Com- 
pany claimed title to a valid location under the laws of Colombia, and 
that it would be deemed a violation of the rights of the American posses- 
sors of such property to interfere with their possession and enjoyment ex- 
cept upon the judgment of a court."^ 

This was followed bj' a letter in which Secretary Root went as far as 
possible in maintaining the rights claimed by McConnell, and setting forth 
distinctly the principle that in Secretary Root's opinion the jurisdiction of 
Costa Rica in the said territory was temporary and precarious, and that 
the title to property rights were determinable according to the laws of 
Colombia and Panama, and in effect demanding that the property of 
McConnell and the American Banana Company should be protected and 
preserved without any destruction, until such time as the ultimate rights 
of the parties should be passed upon by a court of competent jurisdiction."' 

The governments of both Costa Rica and Panama answered this com- 
munication and denied the conclusions of Secretary Root as to the char- 
acter of Costa Rica's jurisdiction in unmistakable terms. Panama stated 
that it conceded to Costa Rica the right to exercise complete jurisdiction 
(see telegrams of Governor Magoon, dated April 27 and May 2, 1906).'" 

Costa Rica stated in the letter of Minister Luis Anderson, dated May 26, 
1906, "Our right, therefore, to govern and dispose as sovereigns of the 
land that we are possessors of, as long as the boundary question is in 
abeyance, is, therefore, a point which is not doubted either by Colombia 
formerly or by Panama at the present moment. And the complete sov- 
ereignty of both countries over that which each of them is occupying now 
up to the time of the definitive demarcation comprises without limit — 
both governments have understood it thus — all the attributes making up 
sovereignty." °^ 



The.Astua Denouncements. 

In the mean time, as had been suggested in the above-mentioned cor- 
respondence, the title to a large area (5,850 hectares, 5,915 square meters, 
excluding 2 per cent, for roads), including all of the very lands on which 
McConnell's cultivations north of the Sixaola River lay, was claimed by 
other American citizens. They had acquired the rights under a denounce- 
ment made in conformity with the laws of Costa Rica by a citizen of Costa 

62 Page 163. "^ Page 163. « Page 166. 

K Pages 170, 175. See also the officially inspired note of Senor Alfaro, page 248. 



Rica, on the 1st of March, 1900 (prior to the date of the Loubet award 
on the 11th September, 1900). A certificate showing tliis fact was issued 
by Secretary Carillo of the Court of Contencioso Administrativo, dated 
4th February, 1905.™ 

Then followed extensive litigation in the courts of Costa Rica respecting Legal 
the validity of these denouncements. McConnell appeared in the courts r'^|°°|'^'^t^(, 
by his duly constituted attorney,""'^ and filed an objection to them, the 
His objection was passed upon and dismissed by the Supreme Court mTut^°^" 
of Justice of Costa Rica on the 15th of October, 1905."^ 

In this decision the claims and position of McConnell were fully con- 
sidered and decided, the court finding as follows: — 

"And whereas the objection raised by Mr. Herbert Lee McConnell lacks McConneii 
all foundations because the said gentleman is not a party entitled to appear ^^^efTated"* 
under any form whatsoever in the present denouncement, since he neither 
alleges any right of ownership to the tract involved nor even the right 
which he might possess as an earlier denouncer of the same land, limiting 
himseK to alleged rights of an improving possessor, and to making sundry 
allegations concerning the invaUdity of the denouncement and the non- 
denounceabiUty of the tracts comprised therein; 

"And whereas the fact that the opponent has made improvements on 
national property does not give him any rights to demand that his posses- 
sion be respected, as long as he has not shown that he had comphed with 
the formahties indicated in section 530 of the Fiscal Code." ^ 

On the 26th of January, 1906, the Court of Contencioso Administrativo 
rehearsed the denouncement proceedings, and ordered the Executive to 
execute a deed convejdng a title to the land covered by the denouncement 
to the Northern Railway Company, a corporation organized under the 
laws of New Jersey, and legally domiciled in Costa Rica. (It is to be noted 
that the said railway company is substantial, as it owns and operates aU 
of the railways in Costa Rica except a small detached portion on the Pacific 
side.)«' 

On the 22nd February, 1906, McConnell, through his same attorney. Deed granted 
Ricardo Jimenez, Esq., filed an objection to the last said judgment, but ^J^^g,^ 
notwithstanding this, on the 14th March, 1906, the government of Costa Railway 
Rica executed a deed granting to the Northern Railway Company 
all of the lands covered by the denouncement mentioned. This deed 
contains an accurate description of the land, and rehearses all of the legal 
steps leading up to its authorization and execution.'" 

On the 23rd of April, 1906, the Coxu-t of Contencioso Administrativo 

'^ Page 187. ^^ Copy of McCounell's power of attorney to Ricardo Jimenez, page 190. 
6' Pages 190 to 121. «« Page 193. ^ Page 197. "Pages 200, 202. 



Withdrawal of 
McConnell. 



Possession 
granted to the 
Northern 
Railway 
Company. 



decreed that the possession of the lauds adjudicated to the Northeru Rail- 
way should be given to itJ' 

On the 26th of April, 1906, McConnell, through his attorney Ricardo 
Jimenez, protested against the last-mentioned decision, and petitioned the 
court that it order McConnell's improvements to be appraised by experts.'^ 

On the 16th of May, 1906, the Supreme Court revoked the decision of 
the lower court so far as it decreed material possession to the Northern 
Railway Company of the lands upon which McConnell claimed cultivations, 
for the reason that it was necessary first to settle the question of the im- 
provements and the right of retaining possession claimed by McConnell.'^ 

On the 27th of July, 1906, McConnell, through his same attorney, peti- 
tioned the Court of Contencioso Ad^jiinistrativo that the judge himself 
should visit McConnell's plantations to see their existence and extent, 
and that the "experts estimate most carefully the plantations, buildings, 
and other improvements." " 

Subsequently McConnell withchew from further participation in the 
proceedings, stating that he had already transferred his title to the land 
in dispute, and therefore had no interest in the litigation.'^ It will be 
remembered that he had assigned all his rights and interests in the Sixola 
lands to the American Banana Company on June 24th, 1904,^' which 
was long before his appearance in the litigation in Costa Rica. He took 
part in that litigation in his own name, claiming to have the rights of 
possession accruing from cultivation,'" and the greater part of the litiga- 
tion was relative to his alleged rights of possession as cultivator." When 
he failed to prevent the acquisition of the lands cultivated, by virtue 
of a superior title, he announced that he had transferred his interest, — 
a statement du'ectly contrary, when the date of the transfer is remem- 
bered, to the representations he had made as the only basis of being ad- 
mitted to the litigation. The American Banana Company never was 
domiciled in Costa Rica,'* as is necessary under the laws of that country 
before a foreign corporation can have any legal standing. 

On the 3rd of December, 1906, the Supreme Court took cognizance of 
McConnell's withdrawal, and then gi'anted the Northern Railway Com- 
pany the right to take possession of aU the land covered by the Astua 
denouncement, and on the 5th day of December, 1906, under order of 
the Com't of Contencioso Administrativo the governor of Limon sent officers 
with the representatives of the Northern Railway Company, and they 
formally took possession of all the lands on which McConnell's cultiva- 
tions stand on the north side of the Sixola River, in the name of the North- 
ern Railway Company." 

" Page 211. '2 Pages 212, 214. " Page 217. " Page 219. '= Page 221. '6 Page 214. 
"Pages 194, 197, 201, 219, 221. 's Page 157. " pageg 223 to 225. 



The Port of Gadocan. 

The cultivations of McConnell are inaccessible except by the Sixola 
river or through Gadocan, and thence overland for several miles. The 
river is not available to take out bananas because of a bar at its mouth 
which renders navigation impossible for large vessels, and so dangerous 
and uncertain as to be practically impossible even for the smallest boats. 
The only possible way open for McConnell was that which he chose, namely, 
to make a port at Gadocan and to build a railroad from there to the plan- 
tations. Gadocan is on the open sea, and, though favored by a freak 
which has left open a narrow passage through the bar, it is doubtful 
whether any permanent or safe port could be made there. Skilled engi- 
neers and others more familiar with the conditions and waters there have 
declared the plan of making a port at Godocan to be utterly imprac- 
ticable and imsafe. (All of the foregoing facts are clearly shown by the 
letters to and from McConnell.)*" 

Besides, it is elementar}' that the right to make a harbor, and to place 
constructions in the sea, requh-es the consent of the government having 
jurisdiction. McConnell and the American Banana Company never had 
and do not claim any such consent whatever. There is nothing about 
making a port or harbor in the Romero concession, and McComiell never 
received any other authority of any kind from either Panama or Colom- 
bia. He never received any authority at aU from Costa Rica, under 
whose jurisdiction Gadocan actually Ues." 

It is even more elementary that a 'port cannot be opened for exporting 
or importing, or for receiving vessels, without governmental authoiity, 
and proper provision for governmental machinery incident to a legal 
port of entry. But neither government ever suggested or assented that 
a port might be opened at Gadocan." 

Regarding a railroad, the only right McConnell ever claimed for himself 
or the American Banana Company was by virtue of the Romero concession, 
which was utterly void and of no effect. McConnell himself acknowledged 
the latter fact, and thereupon claimed that he proposed and had the right 
to build a private tramway on his own land." But his cultivations and all 
the land ever claimed bj' him lay at least several miles away from Gadocan, 
and he never had or claimed any right whatever to the land between. Be- 
sides, the only place where he made any actual preparations for building a 
railway was at Gadocan and on the land of others between that place and 

8" Chapter 1. Also letter to Secretary Hay, September 24th, 1903, page 53. 
6> Pages 64, 94, 154, 173. 



his plantations. That part was essential to his plans, for without it any 
railways within the lines of his cultivations would have been without con- 
nection with the sea and valueless. McConnell was not permitted to land 
railroad material at Gadocan, because that was not an open port, and it 
was contrary to the customs laws of Costa Rica, and therefore illegal to 
do so.*' It is clear that he could not have built a private tramway on the 
land of another \\'ithout the owner's permission, nor a public one without 
governmental authority. 

This was really the bottom cause of his trouble, and he surely can blame 
no one 'but himself for having planted bananas which were only available 
for commerce through Gadocan and a connecting railroad, without first 
having gained the opening of the port, and the right to make the necessary 
improvements thereof, as well as the right to build the railroad. 

An Account of the Boundary Controversy.* 
The controversy over the true boundary between Costa Rica and its next 
neighbor to the east and south (New Granada, the United States of Colom- 
bia, the Republic of Colombia, and finally the Repubhc of Panama) has 
played a conspicuous part in the history of those nations. A short ex- 
planation of the controversy will enable its present bearing on the affairs 
and transactions now being considered to be better understood. 
Origin prior to The Controversy had an early origin. It was officially recognized in 
1576 when King Phihp II. of Spain wi'ote a communication on the subject 
to the Audiencia of Guatemala, to whose jurisdiction the two administra- 
tive districts of Costa Rica and Veragua were subject. The king directed 
the Audiencia to ascertain to which district the Rio de Guaymi, the Bahia 
del Almirante, and the Bocas del Drago belonged, stating in his letter that 
these three were the same and formed the true boundary between those 
districts. There were no sufficient maps in those days, and the king relied 
chiefly for his information on the letters and accounts of discoverers, who 
were more concerned with the gold supplies than with the accuracy of 
their geographical descriptions. The Rio de Guaymi was surely the same 
river that bears that name at the present day. It flows into the Chiriqui 
Lagoon, a part of the two broad sheets of water or bays which were then 
known as Bahia del Almirante. Between these bays and the ocean are a 
number of islands, and the waters or straits between these islands were 
generally known as the Bocas del Drago (the Mouths of the Dragon). 
A glance at the accompanying map mil show that, while the Guaymi River 
might have formed an acciu-ate boundary fine, the Bahia del Almirante 

* See the explanatory map at ttie end. 



1576. 



and the Bocas del Drago, extending many miles in width, could not have 
done so. Then, too, the king was wrong, because the true boundary at 
that time was really the westerly limit of the Ducado de Veragua, which 
of all the ancient boundaries is the one most nearly capable of definite 
ascertainment. Even this line is somewhat indefinite because it is de- 
scribed as twenty-five leguas from the mouth of the river Belen to the 
western part of the bay of Ceravaro (Almirante), and beyond if necessary, 
to make up the full twenty-five leguas. The distance mentioned passes 
the western shore line of the principal portion of the former bay of Cera- 
varo which is now Chiriqui Lagoon, but does not reach the western shore 
line of the present bay of Almirante. 

Unfortunately, the Audiencia of Guatemala failed to solve this uncer- 
tainty, or, if it did so, its decision is lost. Consequently, the same uncer- 
tainty, with varying differences, has existed down to the present day. 
The former administrative district of Costa Rica has been ultimately 
succeeded by the republic of the same name, and the district of Veragua 
by the Republic of Panama. 

In a treaty executed between the Repubhc of Central America and the Guai-MoUna 
Repubhc of Colombia, 15th May, 1825 (Bogota), this uncertainty was ''^^fl/-'^^^^' 
recognized, and the powers interested agreed to respect their limits as they the status Quo. 
then were until such time as the true boundary should be settled. This 
was the origin of the status quo. But even this line of the status quo never 
was definitely fixed, either by the treaties or otherwise, and the limits of 
the temporary jurisdiction remained subject to conflicting opinions of. the 
adjoining nations, until by mutual consent gradually formed it has of 
recent years been accepted that the line of the status quo on the Atlantic 
side is the Sixola River, extending inland at least as far as the mouth of 
the Yurquin, and on the Pacific side Punta Burica." 

The discussion of the boundary has had a varied course. In 1856, caivo-HerrSn 
June 11th, at San Jose was signed a provisional treaty known as the "'®^''''° 
Calvo-Herran treaty. This described a proposed boundary running north 
and north-west from Punta Burica to the source of the Doraces River, 
thence by the course of the same to the sea. The river intended was 
described by the legislature of New Granada, in adopting a con- 
ditional ratification of the treaty, to be the present Sixola.*' It 
is safe to say, however, after considering the maps and geographical in- 
formation then available, that the course of the principal stream of the 
Doraces or Sixola River, running as it does far to the Avestward from its 
mouth, was not then known, and that to follow the course of the branch 
Yurquin would have fulfilled the intention of New Granada at this time. 

S2 A full explanation of the status quo is found in the "notes'* of Senor Alfaro beginning on page 248, 
eppecially from page 254 on, and in the letter of Minister Anderson on page 170. Official historical prec- 
edents to the same effect are found on pages 264 to 272. Also page 238. See page xxvi. 

83 See pages 255 and 256. 



This treaty, liowever, v^as not ratified by Costa Rica, and never took ef- 
fect. Costa Rica did not agree with the aforesaid location of the Doraces, 
claiming that it coincided instead with the present Changuinola. It is to 
be observed, however, that this line, solemnly fixed by the representatives 
of both powers, should coincide with the line subsequently agreed for the 
status quo, if we accept the location of the Doraces claimed by New 
Granada. 

Important evidence is furnished by Felipe Perez, who published in 
1862, at Bogota, a geography of the State of Panama, under the order of 
the general government of the United States of Colombia. He described 
the boundary as following the course of the Dorados, Doraces, or Culebras 
(now the Sixola), and as ending either in the river Golfito or at Punta 
Burica, acknowledging a dispute as to the proper point of ending on the 
Pacific side.'** The most significant part of this testimony, however, is 
the description of the course of the Dorados (Sixola) River in a southerly 
direction, thus confirming the impression that that river was supposed to 
run south and not loest from its mouth. ^* " 
Castro- Another official attempt was made to fix the boundary in 1865, March 

to^^Trf 1865. 30th, by the Republic of Costa Rica and the United States of Colombia. 
Then, too, the representatives of both powers, after very long and exhaus- 
tive studies and negotiations, signed another provisional treaty. The 
line described in this treaty diverged most significantly from the former 
one. It started at Punta Burica, ran to the head-waters of the Chiriqui 
Viejo, thence easterly over the crests of the mountain ranges forming the 
watershed between the waters flowing into the Atlantic and Pacific Oceans 
respectively, passing over the peaks Picacho, Horqueta, Playita, Hornito, 
to Santiago, thence in a straight line northerly to the source of the river 
Canaveral, and thence by the course of that river to its mouth. 

This line corresponds very closely to the one claimed bj^ Costa Rica in 
the arbitration proceedings before President Loubet. 

The treaty of 1865, after being signed by the president and passed for 
ratification by the senate of New Granada, Colombia, was finally rejected 
by the house of representatives in 1866, after one favorable vote in 1865. 
Arbitration All attempts of the interested powers to agree upon the true boundary 

having failed, the next attempt was to leave the matter to arbitration. 
A treaty was concluded at San Jose on December 25th, 1880, in which it 
was agreed to " fix a line which shall divide for all time and perfectly clearly 
the territory of" the two countries, "each one remaining in the full, un- 

"^ To tlie same effect is the map of Colombia of 1824 mentioned on page 255. 

8^a The map of Manuel Ponce de Leon and Manuel Maria Paz (Bogotd, 1864) shows the Dorados or 
Culebras river as running almost due north and south. 



treaty of 1880. 



■disturbed, and peaceful possession, as far as they are concerned between 
themselves, of all the territory which said line leaves on their respective 
sides." It was also provided that the arbitrator's decision "will at once be 
considered as a perfect, obligatory, and irrevocable treaty of binding force 
between the two high contracting parties, which formally and expressly 
renounce every claim of every kind against the decision of the arbitrator, 
and bind themselves to respect and fulfil it promptly, faithfully, and for 
all time, pledging therefor the honor of the nation." 

By an additional convention dated January 20th, 1886, the former treaty Additional 
was supplemented, among other things, in the following manner: Upon o™8|g"°° 
the insistence of the United States government that the limits of the terri- 
torial dispute should be fixed, article 2 of the supplementary convention 
provided : — 

"The territorial boundary which the Republic of Costa Rica claims on 
the side of the Atlantic reaches as far as the island Escudo de Veragua 
and the Chiriqui (Calobebora) river inclusive, and on the side of the 
Pacific as far as the Chiriqui Viejo, inclusive, to the East of Punta Burica. 

"The territorial boundary claimed by the United States of Colombia 
reaches on the side of the Atlantic as far as the Cape Gracias a Dios inclu- 
sive, and on the side of the Pacific, as far as the mouth of the Golfito 
River in. the Golfo Dulce." 

It was further provided in article 3 that "the arbitral award shall be 
confined to the disputed territory which lies between the extreme bounda- 
ries above described." 

One of the original arbitrators named was King Alfonso XII. of Spain, but Additional 
in 1885, after having accepted orally the position of arbitrator thus ^^i^ge*'"" 
inaugurating the arbitration, he died. After some unimportant difficulties 
with regard to an arbitrator, the interested powers executed a fm-ther con- 
vention dated November 4th, 1896, appointing the president of France as 
arbitrator, and thereupon the respective claims were duly submitted to 
President Loubet accordingly. 

The claims of Costa Rica were presented by Ambassador Manuel M. ciaimof 
de Peralta, with most profound studies and exhaustive information. ^°^^'^'^"'^- 
Costa Rica claimed exactly the following boundary, to wit, from Escudo 
de Veragua, southward to the mouth of Rio de Chiriqui, thence following 
up to its source in Cerro Santiago, thence along the watershed mountain 
range over Cerro del Hornito, Cumbre de la Playita, and Cerro de la Hor- 
queta to the eastern principal source of Rio de Chiriqui Viejo, thence 
following the course of the same river down to its mouth in the Pacific 
Ocean, east of Punta Burica. 



Claim of 
Colombia 



President 
Loubet's 
Award, Sept. 
11th, 1900. 



Costa Rica's 
interpretation 
of President 
Loubet's 
Award. 



The boundary claimed by Colombia was exactly as follows: From the 
mouth of Rio Golfito in Golfo Dulce along a meridian which, crossing 
Rio Coto flowing into the Pacific Ocean and the rivers Lari and Coen, 
tributaries of the Tiliri or Sigsaula (Sixola), flowing into the Atlantic, in- 
tersects the Tiliri at 9° 33' north latitude, and 85° 31' 30" western longitude 
from Paris (83° 11' 16" western longitude from Greenwich), and thence in 
a straight line to the mouth of Rio Saratiqui, where it flows into the Rio 
San Juan at 10° 43' northern latitude, and 86° 15' western longitude of 
Paris (83° 53' 46" western longitude from Greenwich). 

On September 11th, 1900, President Loubet announced his decision. 
He made the following finding: "The frontier between the Republics of 
Colombia and Costa Rica shall be formed by the spur of the mountain 
range which starts from Punta Mona on the Atlantic Ocean and encloses 
on the north the valley of the Tarire or Sixola River, and thence by the 
ridge of the mountain range which divides the waters between the Atlantic 
and the Pacific oceans as far as the 9th degree of latitude, approximately. 
It shall then follow the dividing ridge between the Chiriqui Viejo and the 
tributaries of the Golfo Dulce to Punta Burica on the Pacific Ocean." 

This award had the great disadvantage of not being definite. Immedi- 
ately Ambassador Peralta wrote to Minister Delcasse, asking more exact 
data and suggesting that his (Peralta's) interpretation of the boundary 
line was as follows: "The frontier between the Republic of Colombia and 
that of Costa Rica shall be formed by the spur of the mountain range 
which starts from Cape Mona, on the Atlantic Ocean, and encloses, 
on the north, the valley of the Tarire River (or Sixola River) near the 
mouth of this river ; it shall follow in west-south-westerly direction on the 
left bank of this river, up to the confluence of Yurquin or Zhorquin River 
(also called Sixola, Culebras or Dorados) toward the meridian 82 degrees 
50 minutes West of Greenwich, 85 degrees 10 minutes West of Paris, and 
9 degrees 33 minutes latitude north. There the frontier line shall cut the 
Tarire thalweg (riverbed), on the left bank of the Yurquin, and shall follow 
in a southerly direction, the mountain chain dividing the waters between 
the basins of the Yurquin to the east and of the Uren to the west; then 
by way of the range dividing the waters between the Atlantic and the 
Pacific as far as about the ninth degree latitude; then it shall follow the 
line dividing the waters of the Chiriqui Viejo from those of the affluents of 
the Golfo Dulce, to terminate at the Punta Burica. The Punta Mona is 
situated under the meridian 82° 39' west of Greenwich (84° 59' west of 
Paris) and 9° 39' latitude north. The Punta Burica is situated under the 



meridian 82° 53' west of Greenwch (85° 15' west of Paris) and 8° 2' lati- 
tude north. The intersection of the boundary hne with the ninth parallel 
is at about 82° 45' west longitude of Greenwich (85° 5' west of Paris)." 

Minister Delcasse's reply was neither definite nor satisfactory. He 
stated that in the absence of exact geographical data the arbitrator had 
been able to fix the frontier by general indications only, that there would 
be difficulty in fixing the frontier on the map, and that it was left to the 
friendly spirit and good understanding of the two powers to fix the same 
on the ground. But all attempts to do so heretofore have failed, and the 
award has never been regarded as effective by either nation.*^ 

The Loubet award was never entitled to be called an award at all, and iPresident 
was wholly null and void from the beginning for two reasons: first, because /award void, 
the description of the supposed boundary line was so vague and indefinite / 
that the award was incapable of execution without further agreement of I 
the two powers; second, because the award included a large area not claimedj 
by Colombia and not within the hmits prescribed by the treaty itself. 

The latest attempt to reconcile their differences, which Mr. McConnell Guardia- 

^ ^ ^ ^ Pacheco 

endeavored to frustrate, resulted in the execution of another provisional treaty ot 1905 
treaty. This was signed at Panama on the 6th of March, 1905, and 
is known as the Guardia-Pacheco treaty. It provides for a line which 
runs as ioUows : — 

"A line which starting from Point Mona on the Atlantic ocean shall run 
in a S. W. direction until it strikes the Sixola river, below Cuabre. From 
this point the dividing line will run along the left bank of said Sixola 
river to its confluence with the Yurquin or Zhorquin river. Here the 
boundary will cross the bed of the Tarire or Sixola river to the left bank of 
the Yurquin and will thence follow in a southerly direction the water shed 
first between the heads of the Yurquin on the east and the Uren on the 
west, and then between those of the latter and those of the Tararia river 
until it reaches the crest of the great mountain chain which divides the 
waters of the Atlantic from those of the Pacific ocean. Thence the line 
will run in a E. S. E. direction along the said crest to a point named 
Cerro Pando which marks the beginning of the divide between the waters 
of Goto de Terraba and Chiriqui Viejo rivers. From there the boundary 
will continue along the crest of the Santa Clara mountains following the 
divide between the waters of the Goto de Terraba and Esquinas rivers 
on the west, and that of the Chiriqui Viejo and Goto del Golfo rivers on 
the east, until it reaches the head of the Golfito river following the com-se 
of this latter to its mouth in the Golfo Dulce which mouth is called 

'^ For Costa Kica, see letter of Minister Anderson, page 170; and for Panama, see. note of Senor .\lfaro, 
pages 248 and 250. 



Ratification 
of Panama. 



McConnell's 
agitation in 
Panama in 



Tlie Status 
Quo, 



Golfito. From this last point to Puntareiiitas an imaginary straight line 
drawn shall divide the waters of the Golfo Dulce." 

This provisional treaty has been ratified by the national assembly of 
Panama, and will shortly come before the legislature of Costa Rica for 
similar ratification. It is likely that the treaty would also have been rati- 
fied without question in Costa Rica if it had not been for the agitation 
instituted by McConnell in Panama in the autumn of 1906. McConnell 
attempted to persuade the legislators of Panama that the Loubet award 
had gone into effect, and that Panama had the right to the jurisdiction of 
the territory between the Sixola River and Punta Mona. He proposed 
that the legislature should pass a resolution directing the executive of 
Panama to take possession of this district and to exercise jurisdiction 
there.*" He also published open letters in the newspapers of Panama 
advocating such action.*' The government of Panama opposed McCon- 
nell's memorial and caused to be published a reply by Senior Alfaro.** Not- 
withstanding this, however, at a meeting of the legislature, on the 13th 
of November, 1906, when the president and other influential members of 
the government were absent from the city of Panama, McConnell procured 
a committee of the legislature to make a report in favor of his proposed 
action,*" and the legislature enacted a resolution directing the executive 
to exercise jurisdiction in the territory described. This sudden action, 
without proper consideration, created a sensation in Panama, and incurred 
the active opposition of the government. Shortly afterwards the national 
assembly revoked that resolution, and passed another declining to act as 
McConnell had proposed."" 

The agitation in Panama was followed with close attention at San Jose, 
and it unquestionably aroused a greater interest in the boundary contro- 
versy than would otherwise have been anticipated at this time. The action 
of the legislature of Panama, even though it was afterwards revoked, was 
contrary to the historical precedents, and created an unfavorable impres- 
sion in Costa Rica. 

During all of this controversy as to the location of the ti-ue and final 
boundary between the countries interested, there has existed the agree- 
ment and understanding that each country should continue to exercise 
jurisdiction up to the line actually occupied respectively in 1825."' 

The exact location of their occupation at that time, commonly referred 
to as the line of the status quo, has been uncertain because the localities 
in question were wild lands and not inhabited except to a small extent 

«i Page 226. S7 page 244. ss page 248. ™ Page 258. ™ Page 263. 

" Gual-Molina Treaty of 1825, page xxi. 



on the Pacific side. But recently the status quo has been acciu'ately fixed 
so far as concerns the vicinity of the Atlantic Ocean, and is the river Sixola, 
at least up to the mouth of the Yurquin. This is estabhshed for Colombia 
by the official report of the minister of foreign affairs, Senor Marco F. 
Suarez, to the national assembly of Colombia, submitted in 1894,'^ and 
for Panama by the communication of Senor Alfaro and the authorities 
cited by him.'' On the side of Costa Rica, the same is admitted in the 
official correspondence, copies of which may be found in chapter 6, and 
especially in the communication of Minister Jose Astua Agiiilar, dated 3rd 
March, 1906.'* 

The course of the Une from the mouth of the Yiu-quin, following the 
stream of that river or the watersheds in a general southerly direction, is 
fairly well established, but has never been an important consideration, 
since the territory is inhabited only by a few Indians. In the vicinity of 
the Pacific Ocean there is greater uncertainty. Punta Burica was formerly 
regarded as the limit of the respective jurisdictions,'^ but Colombian citizens 
have undoubtedly occupied territory between there and Rio Golfito, and 
of recent years it appears that Costa Rica has not disturbed the govern- 
ment of Colombia up to that river." 

The distinction is always to be borne in mind that the line of the statiis 
quo is merely one of convenience, and that the true and final boundary is 
to be determined by the royal grants, and not by the actual occupation of 
the two countries. This was the position taken by the representatives of 
both powers in the arbitration proceedings, and is historically correct. 
Therefore, if either country is found in actual occupation of territory which 
should belong to the other as of right, this fact should not influence the 
determination of the final boundary. But it can readily be seen that 
settlements actually made in an otherwise unoccupied territory create 
conditions which have some practical effect. Such occupation and settle- 
ment by the citizens of one nation make a very real, though perhaps not 
a legal reason, for suffering the jurisdiction of that nation to continue, and 
render equally difficult the assertion of rights of jurisdiction by another 
nation. It is sui-ely difficult to transfer a settled community to the juris- 
diction of some other nation than that whence it emanated, and which it has 
always recognized as sovereign. Therefore actual occupation and settle- 
ment are bound to command consideration and allowance, especially in the 
case of a controversy which has existed so long a time, and where the dis- 

S2 Page 264. ^ Page 258. 

^ Page 158, 160. In the accompanying map the line of the status quo follows H. Pittier. 

* Report of Minister Suarez above referred to, page 265. 



puted area is so vast. So, too, the actual settlements necessarily affect 
the hmits of temporary jurisdiction, and to this is doubtless due the grad- 
ual alteration, if it has been altered, of the line of jurisdiction on the Pacific 
side. 

These considerations were paramount in influencing the conduct of Costa 
Rica when McConnell proposed to land the steamship "Orn" and to pro- 
ceed to build a railroad, open a port, and make settlements under reputed 
Colombian authority. To have permitted McConneU to do this would not 
only have subjected Costa Rica to the possibility of losing additional terri- 
tory, in the same manner as had actually occurred on the Pacific side, but 
would surely have prejudiced its case in the whole boundary controversy. 
It is seen how important it was to Costa Rica to forbid the landing of the 
"Orn," and how justifiable that action was. 

(Note. — A fiu'ther account of the early history of this controversy will 
be found in the interesting and learned article by Professor Edward Seler, 
Ph.D., reprinted on p. 323 within.) 

Competition at Bocas. 

There always has been a large number of planters at and near Bocas 
del Toro, who produced bananas and were ready to sell them to the best 
buyer. Any one could buy them. Joseph Di Giorgio began in 1903 
to send ships there and bought large numbers. A period of competition 
ensued in which Camors-McConneU Company took an active part. They 
and the United Fruit Company paid such high prices for the fruit of the 
indi^ddual planters that Di Giorgio, being compelled to pay similar prices, 
found the trade no longer profitable. McConnell thereupon bought his 
banana plant. This is the only instance known where a banana merchant 
was forced away from Bocas by competition, in which the United Fruit 
Company was interested, and McConneU did it.*" 

Since then a disease has attacked the bananas on the Chiriqui lagoon, 
and has destroyed practically all the supplies available from Bocas, ex- 
cept some grown and owned by the United Fruit Company, and by Camors- 
McConneU Company. 

It is true that no one can buy any bananas at Bocas now, but this re- 
sult is caused by the disease and not by any operations intended to pre- 
vent competition or produce a monopoly. 

83 Letter of T. D. Nettles dated August 1st, 1903, with euclosure, page V, and letter of McConnell 
dated August 3d, 1903, page X. 



As to other points in Central America as well as Jamaica and Cuba, 
any one can buy large quantities of bananas there. And this is proved 
by the fact that such is actually the case, and such bananas are bought 
and are brought to the United States and sold here by persons and cor- 
porations who have no association whatever with the United Fruit Com- 
pany, and are its active competitors. The United Fruit Company en- 
joys no monopoly of the banana trade. In the year ending September 
30th, 1906, it. imported into the United States only 19,352,310 bunches 
of bananas, while others imported at least 17,376,897. In the year end- 
ing September 30th, 1905, the United Company imported 19,929,433 
bunches, while others imported at least 13,409,709 bunches. 



CHAPTER 1. 
Containing copies of a few important letters.* 

Mobile, Ala. Cable Address: "McConnell/' — Limon. Bocas del Toeo. 

CAMORS-McCONNELL COMPANY. 

Growers — Exporters 

BANANAS. 

Bocas del Toro, Rep. Col., 4-23, 1903. 
Mr. T. D. Nettles, Mobile, Ala.: 

Dear Mr. Nettles, — T\1iile the weather has continued extremely dry 
until yesterday morning and last night, when there was a great down- 
pour of rain, the planters seem to have turned out better than usual to 
cut fruit this week, and it now appeal's that the "Gaines" will have a cargo 
of something like 20,000 bu. Beckmann has no steamer loading, which 
fact accounts in small part for the "Gaines"' large cargo. Fruit will 
doubtless be more plentiful next week, and, if the "Morgan" is back in 
time to load with the "Fulton," she ought to get a fair cargo. 

There seems to be but little change in the situation in reference to the 
opposition line, except that the "Fulton" got quite a fair cargo last week. 
That seemed to be due to the fact that Beclonann made the rounds, and 
told all the planters that, unless they gave that ship a full load, Digiorgio's 
boats would be withdrawn, and the price would drop to 55 cents. He 
al^ reported in some sections that our orders for fmit were for the United 
C^. Those reports had some influence, as we had on one occasion sent 
out notices for that purpose, then, too, one of that Co.'s launches deliv- 
ered a part of our notices. It remains to be seen whether such talk had 
more than temporary effect. Beckmann is paying 70 cents against our 
$1.00, but his more liberal selection about equalizes prices. All of our 
fruit is now costing $1.00 with the exception of that from Robalo and 
our own plantations. It would be a good idea to suggest to Mr. Ellis 
the advisability to have some one' approach Digiorgio with a proposi- 
tion to take his plant off his hands, but above eveiything see to it that 
Victor Camors has no finger in the pie. His work here was very expen- 

* See also letter to Secretary Haj', September 24th, 1903, page 55. 



B 

sive and absolutely worthless. In fact, I am confident that he did our 
interests real harm. I have not yet arranged to do any planting, but 
have spent much time since my arrival here in exploring different sec- 
tions of this country, and have finally determined that Sixola River is 
the proper place to plant, provided control can be secured, and it is found 
that a port close by can be made a safe harbor. Several parties besides 
myself are making an effort to secure the land and port, and it remains 
to be seen who will be successful. It was until some two and a half years 
ago disputed territory, when the President of France as arbitrator de- 
cided in favor of Colombia and against Costa Rica. On account of the 
revolution in this country a joint commission has never been appointed 
to survey and fix the exact line. The territor}' is therefore still under 
Costa-Rican jurisdiction, and that country sent soldiers a few days since, 
and stopped my work of securing the land according to Colombian laws. 
Temporary ai'rangements were, however, made with the conunanding 
officer for a continuance of the work, but, as that was contrary to his 
orders, the work is likely to be stopped again at any time. In addi- 
tion to the complications named, the C. R. government some years ago 
granted this land to an American in consideration of military services 
rendered. I expect to leave for Panama on this business Saturday, and 
may be there a week or two, but expect to return here before going to 
New York. Mr. Warren has made a draft on me on this account for 
some S395.00. Please open a special account in my books on that account. 
Mr. W. will draw again in a few days for some five or six hundred dollars 
on this account, and later for other sums as they are needed. If you 
run short of funds, borrow of the bank. You might discontinue paying 
at once grocery bills on which no discount is offered. It may be that 
I will need several thousand dollars while at Panama in order to secure 
the land. In that event, should you not be able to get as much as I need 
of the Trust Co., write J. W. or R. McConnell, B'gham, for any addi- 
tional amount that you may need to make it up. Say nothing about 
this matter, as I have reason to believe that the United Co. is responsible 
for the C. R. government's action in stopping my work. 

Mr. Flynn is taking hold as cashier, and wiU, we think, prove a good 
man. Herbert will handle the books, and he will, I hope, have the De- 
cember accounts ready in ten days or two weeks. Herbert was glad to 
get the lumber, even at the high prices, and you will, I hope, succeed in 
shipping the balance by the "Gaines" next trip. 

I enclose a letter from Cratty Bros. & J., and would thank you to -mrite 



c 

them that the matter will have my attention on my retm^n. I also en- 
close statement and check from McC. & C. Please file the statement 
and use the check. 

The Central Trust Co. statements sent me make fine showings. I 
thank you for them. I am also obliged for the suit of clothes. I am 
sending in care of Capt. Jullum a package of silks which Mrs. Dehls wishes 
you to express as per the address on the second wrapper. Charge the 
expense to K. .B. & Co. 

It would be well to buy pots or other vessels for fumigating purposes 
for both the steamers, in order to avoid the necessity for stopping at the 
Fort on outward trips. 

Please send Mr. Warren an additional $2,000.00 in $500.00 N.Y. checks. 
He will advise you in future when more is wanted. 

I have requested Mr. W. to send you by the "Morgan" about 200 
Limes, six doz. Pines, and eight bu. Plantains. After supplying your- 
self liberally, divide the balance with Miss , Joe, WiUiam, and Mrs. 

. If the Pines hold out, j^ou might hand a few to Miss , 

also send a few to the Stationery Co. for Miss . 

Yours truly, 

H. L. McCONNELL. 



April 23rd, 1903. 
Messes. F. J. Alvarado & Co., 
Port Limon, C.R. : 
Dear Sir, — I beg to enlist your good services in the following matter: — 
I wish to cultivate certain lands that lay north of the Sixola River, 
extending on the ocean front to or beyond a point called Gadocan (or 
Goddocan or Cadocan) some two or three miles North of the river, and on 
the river for some miles up. I understand that this section covers a por- 
tion of territory that was ceded to the Republic of Colombia under a deci- 
sion in arbitration rendered by the President of France, and that the de- 
cision is binding on the two Governments, but that actual possession does 
not pass to Colombia until a joint commission shall survey and establish 
the line. - Pending this survey, I understand Costa Rica retains possession 
as far as the North bank of Sixola River. 

If there is nothing to prevent you acting for me, I will thank you to 
take this matter up with the Government of Costa Rica, and secure a per- 



D 

mit for me to go ahead and cultivate such quantity of land as I may find 
available, from the Sixola River along the ocean front as far as Gadocan 
or thereabouts, and running along the North bank of Sixola River as far 
as I may desire to cultivate. 

If you find it necessary to employ an attorney, I suggest that he be not 
identified with the banana interests of Costa Rica, and it would be well 
for you to ascertain that fact before securing his services. 

I understand that General Herbert C. Jeffries, who was employed by 
the Costa-Rican Government as an army officer a few years ago, received 
a land concession of 20,000 hectares from the Government in recognition 
of his valiant services, and that he has located his concession on the Sixola 
River, on a portion of the soil I propose to cultivate. Will you please 
ascertain if this concession was made, and if the title to same passed to 
General Jeffries, and if he still holds the concession, and whether or not 
this title will hold against the claims of a bona fide cultivator of the land, 
so granted? Also, whether or not such a concession, which included the 
site for a port, would prevent me taking possession of and improving such 
port? 

In securing the permit for me to cultivate the land, please include per- 
mission for me to select and improve a port convenient to said land and 
build the necessary railway to deliver the products of the land to the port. 

In the event the Government feels that it has not the authority to give 
permits over the territory under discussion, it certainly could issue the 
necessary permission with a proviso that it should be subject to the Colom- 
bian laivs, if such laws conflict therewith. 

We expect to m.ake use of Gadocan as a port. 

I understand that in Costa Rica the mode of securing lands along water- 
courses and ocean front is different from the ordinary way. Your attorney 
will probably be able to explain the matter quite fully, which explanation 
I will be glad to have, together with information as to whether or not the 
same rule applies to navigable streams as ocean front, and a definition as 
to what constitutes a "navigable stream." My understanding is that 
the title to lands along navigable streams and ocean front, for a certain 
distance back or inland, remains in the Government, but that the land may 
be cultivated by tenants who remain in undisturbed possession. 

If my presence is required in Limon, I will be glad to come if you can 
secure a permit for me to pass the quarantme authorities. There is really 
no necessity for quarantine now, as the small-pox has disappeared at this 
port, and clean bills of health will be issued from this time forward. 



E 

In order that you may act at once, I beg to enclose to you my power 
of attorney. 
Thanking you in anticipation, I am, 

Yours very truly, 

Herbeet L. McConnell. 
pp R. K. Warren. 

Panama, April 27, '03. 
Mr. R. K. Warren, 
Bocas del Toro : 
Dear Mr. Warren, — I regret to have to report that Romero has secured 
the concession to build a road from Goddocon to Sixola. I will, however, 
make an effort to buy his contract, but as yet have not approached him 
on the subject. 

If you have the opportunity, direct Bolder to make a careful investiga- 
tion of the railroad route from the north side of Goddocon to the River. 
We cannot parallel Romero's route within one mile on each side. 
It would hardly be advisable to send Jullum to inspect the Port. 
Please direct Alvarado to discontinue his efforts. 
It is my intention to return on the "Intrepid" next week. 
With regards to all, I am. 

Yours truly, 

H. L. McConnell. 

L. Heuer & CiA. 
Antes: H. R. Dieterich. 

Direccion Telegrafica : 

HErER. 

Colon, R.C, May 19, 1903. 
Dear Mr. Warren, — Francisco Lopez tells me this morning that he has 
been appointed Alcalde of Bocas, and that he wiU arrange with you for the 
issuance of the permit for planting on Sixola. He, no doubt, wants a few 
doUars. You wUl, of course, be governed by your judgment as to what 
is best to be done. He expects to return to Bocas on the "Intrepid" 
next week. 

I handed my appeal to the Prefect. 

Yours truly, 

H. L. McConnell. 



T. S. 11.-10,000 May, '02. 

Panama Railroad Co., 
Panama Raikoad S.S. Line. 

S.S 

Colon, 5-19, 1903. 
Mr. R. K. Wareen, 
Bocas del Toro, 
Dear Mr. Warren, — Mr. Molt lelLs ine that he will be entirely satisfied 
with $1,000 gold on account of the Gadocan concession. You will 
therefore please accept his transfer for any interest that he may have in 
the concession, issue him a draft on nie for half of the amount named 
(five hundred dolls.) and my agreement to pay the remainder when Gado- 
can has proved a satisfactory port in good and bad weather. Mr. Mott 
will hand you maps and drawings of the port, river, and lands, and render 
you any further assistance that he can. 

Yours trul}', 

H. L. McCoNNELL. 

Mr. M. thinks that Parades is still Alcalde. 

Agreement to pay Mott for the Romero Concession. 

Whereas Oscar Mott declares that a certain point on the Atlantic 
Ocean coast, between the point known as "Monkey point" and the mouth 
of the Sixola River and known as "Godocan" in the civil district of Bocas 
del Toro, Republic of Colombia, is a safe harbor and good port in good 
and bad weather for the anchorage of large steamships, and 

Whereas said Mott has sold to H. L. McConnell aU his interest or 
claims in and to a certain concession or contract between Ricardo Roman 
Romero and the Government of Colombia, whereby the former is granted 
the exclusive right to construct and operate a railway from the said port 
of Godocan to a point on the Sixola River, and 

Whereas the said McConnell proposes to improve the said port of Godo-. 
can, and as a further consideration for the sale of said claims or interest 
of said Mott in and to the concession or contract aforseaid the said Mc- 
Coimell proposes to pay said Mott the additional sum of Five hundred 
dollars ($500.00) United States currency (in addition to the five hundred 
dollars ($500.00) purchase price of Mott's interest) if and whenever the 
said port of Godocan has proven to be a satisfactory and safe port for 
steamships in good and bad weather. 



G 

Now, THEREFORE, I, Herbert L. McConnell, by my attorney, Robert 
K. Warren, promise to pay to Oscar Mott the sum of five hundred dollars 
($500.00) United States currency when and on condition that the afore- 
said port of "Godocan" proves to be a satisfactory and safe port in good 
and bad weather, after the completion of the improvements I propose to 
make. 

Whereas I; Oscar Mott, did claim an interest in a certain concession or 
contract entered into between the Government of Colombia and Ricardo 
Roman Romero, approved by the Governor on the second day of April, 
1903, whereby the Government of Colombia ceded and gave to said Romero 
the exclusive right to build and operate a line of railway to begin at Godocan 
on the ocean, and extend to a certain point on the Sixola River, in the 
District of Bocas del Toro, being on the Northerly side of said river, and 

Whereas Herbert L. McConnell did purchase from said Romero all 
the right, title and interest of whatever character owned or claimed by 
said Romero in said concession or contract, 

Now, therefore, I, Oscar Mott, for and in consideration of the sum 
of five hundred dollars (.1500.00) United States currency to me in hand 
paid by draft on H. L. McConnell, at Mobile, Ala., the receipt whereof 
is hereby acknowledged, do hereby give, grant, sell, and convey unto 
Herbert L. McConnell all my right, title, claim or claims and all interest 
of whatsoever character in and to the above-named concession or contract 
between the Government of Colombia and Ricardo Roman Romero as 
aforesaid. 

In witness whereof, I have signed this document, in the town of Bocas 
del Toro, Republic of Colombia, this 22nd day of May, 1903. 

Translated to Spanish — and will be recorded— on stamped paper. ' 

R. K. W. 



[Extract from Letter dated June 3rd, 1903.] 
D ear Mr. McConnell, — 

... I sent a lighter load of goods and lumber 
to Bolder on Friday night, which got in the river, but the sea rose so 
while they were inside that we could not get the lighter out, and it is 
yet there. Grenaldo brought the "Esmeralda" out safe, but it was very 
rough. The sea must be absolutely calm before I will risk the "Messen- 



H 

ger" over the bar, or another lighter. Am trying to arrange with Bolder 
to have a lookout at Gadocan at all times to receive important messages. . . . 
With regards, 

Yours truly, 

R. K. Warren. 

June 10th, 1903. 

Dear Mr. McConnell, — By the "Morgan" I have your esteemed letter 
of 30th ulto., written at N. Y. The ship is so near loaded at this writ- 
ing that I cannot answer it as fully as I want to. 

Matters in connection with the application to plant are not moving 
satisfactorily. Parades, who is still alcalde, is in with the U. F. Co. 
gang, and they have made application for our land. We will circum- 
vent them with "Grease." The bonds will be attended to, and Bolder 
will go with the R.R. maps, etc., to Panama. Have just arranged with 
Valverde to go with him and arrange matters at Colon and Panama. 
Diplomacy and a little dinner will fix things all right and at little expense. 
The Costa Rica matter is being attended to by Valverde. He is pre- 
paring letter to the Governor to be signed by you. 

Will write you fully by Saturday boat. 

With regards. 

Sincerely yours, 

R. K. Warren. 

My exchange rate is maintained at 2.50. Leer won't come in. See 
his note enclosed. 



H. L. McCoNNELL, Prest. T. D. Nettles, Secty & Treas. 

Cable Address : "McConnell" 

CAMORS-McCONNELL CO. 

Growers — Importers. 

BANANAS. 
C. W. Blockley, 
Mgr. Bocas Division, 
Boca del Toro, South America. 

Mobile, Ala., U.S.A., June 10, 1903. 

Mr. R. K. Warren, 

Bocas del Toro, S.A.: 

Dear Sir, — 

... I really do not think that any one will make any deter- 
mined effort now to disturb us, as the situation is, I feel, secured. Under 
the railroad concession we can condemn any property through which it 
is necessary to run, hence you need feel no uneasiness regarding the small 
piece of property near the beach. 

Mr. Kyes reported to Keith, so he (Mr. Keith) told me, that, whUe the 
land on the margin of the Sixola is equal to Changuinola land, that farther 
back is not. It is likely that ]VIi\ Kyes' trip there was sunplj^ for the 
purpose of ascertaining just what was being done and to get definite in- 
formation regarding the entire situation so as to make a report. Mr. 
Keith, it seems, deemed it best to treat the matter mildly, but I found 
the opportunity to name some of om- grievances which I did in very plain 
language. He made most reasonable propositions to induce me to with- 
draw from my intention to plant in Sixola, but I declined to entertain 
them until after I had ascertained definitely whether or not Gadocan could 
be made a satisfactory port. I told him that I would be glad to have him 
join me in improving the property, but no terms were mentioned, and it is 
understood that the matter will rest that way imtil the port has been passed 
on by an expert engineer. In the meantime I would recommend that you 
act as though there is no possibility of any rupture taking place between 
the United and Caniors Companies, and try to keep on as good terras as 
possible with Leer. I took occasion, when talking to Mr. Keith, to men- 
tion our difficulties in worting with that gentleman, and he will doubtless 
receive instructions to modify lus policy. 

Yours truly, 

H. L. McCONNBLL. 



P.S. — When Mr. Dolder goes to Panama, it would be well to Lave him 
ascertain whether or not the Government proposes to grant my applica- 
tion for free import duties on commissary supplies, material for building, 
etc., while the planting is being done. As you will remember, that matter 
is being looked after by Mr. Valdes. 

June 19th, 1903. 
Dear Mr. McConnell, — 

. . .1 have just spoken with the alcalde (Parades), 
and he said he wanted to see me at my room. I told him I was ready at 
any time. If greasing to the extent of four or five hundred silver is wanted, 
I will yield. If it is for a greater sum, I will submit it to you before agreeing. 

Faithf-uUy yours, 

R. K. Warren. 



July Sth, 3. 
Mr. H. L. McConnell, 
Mobile, Ala. : 

My dear Sir, — Your esteemed favor of 1st inst. is before me. I am 
not quite familiar enough with the Geography of Sixola to tell you exactly 
what lands are claimed by McGonigal, Parades & Co., but it begins some 
place three or four miles above our camp, and the extent claimed is 5,000 
hecktares (can't spell it). This morning Parades came to see me accom- 
panied by Valverde and Outten. Parades asks j'ou to let them have 
this land without any more trouble and Valverde thinks it well that the 
matter be arranged this way. The matter is so serious that I promised 
to refer it to you, as it is beyond the purview of my authority. Parades 
has already issued an order countermanding the notice to us to vacate 
and has issued instructions to the Commissariat at Sixola to let us pro- 
ceed with our work without molestation of anj^ kind. This was evi- 
dently preliminary to his call upon me. The proposition is accompanied 
by another suggestion, as foUows: Parades is going to Bogata to have 
his rights to his land and other matters confirmed, ratified and approved 
by the Congress and Government. He proposes to have your rights 
ratified and confiii-med at the sam.e time, both as to youi- land and the 
Chiriqui road, provided you allow Dr. Valverde to go with him to Bogata. 
Valverde wants to go. They were indefinite as to the probable cost of 
the trip, and I could not get from either of them an idea of the cost. It 
provides for breakfasts, and I presume other lobbying expenses. Mr. 



Parades said that he would with pleasui-e issue to Bolder and me a permit 
for 5,000 odd manzanas each, and this will be included in the above pro- 
posed ratification. It seems that imder the present law all Panama prov- 
ince lands are open and title to same cannot be secm-ed except by special 
act or confu-mation, by special dispensation, from Bogata. It is prob- 
able that no one would be disturbed when cultivating land, but Valverde 
thinks it quite desirable for you to have government title and for that 
reason urges you to let him go to Bogata. I cannot say whether or not 
Valverde's motives are selfish, but he is evidently very much interested 
in you and yom' welfare. The question is up to you, and I ask you what 
you desire me to do in the premises, both as to letting Parades have the 
land and as to the proposed trip to Bogata. I confess I am at sea on 
both propositions. My belief is that we have om- land secure as weU as 
the land claimed by McGonigal, Parades & Co. Whether or not legal 
compHcations may foUow is a matter that I cannot foretell. But as 
Valverde seems anxious about it, now, though he did not seem to have 
any fear before, it puts me in a quandary. Valverde's reputation is 
that of a strictly honorable man, both here and Panama, and I carmot 
beheve that he is trying to "milk" us, but it looks "sorter" that way. 
If such be the case, are we willing to be milked, or shall we stand pat and 
fight it out? It may possibly be a real necessity to have Bogata ratifi- 
cation, and it might be well to think carefully over it before deciding. 
Parades is anxious to go, and awaits your answer by the retm-ning "Fort 
Morgan." I beheve you clearly understand the matter as I have put it 
to you. 

I have had nothing from Bolder since my last letter to you. I sent 
launch to Gaudocan on Sunday with mail and a few laborers. The launch 
waited 5 hours, and fearing bad weather had to start back without Bolder's 
answer. I wiU send again on Sunday. 

I note that you hope to secure an engineer thi'ough Mr. Clarke. I 
hope you wUl succeed in getting a good one, because Mr. Clarke is all 
right. I have, however, no fear of the result of the investigations of a 
good engineer, if he stays at Gaudocan and studies the case thoroughly. 

I have not a line from Goft' since I authorized him to proceed. Romero 
comes with a tale that parties leaving Bavid on June 30 neither saw Goff 
nor heard anything of the proposed work on the road. If this could be 
true, I presume Goff is gettmg his men, animals, tools, and supplies together 
preparatory to the work, and therefore is not visible. 

The collections for May, Rio Biarra, were $28.00 
" June, Chkiqui " 93.00 



Romero says there were no collections in May on Chiriqui. I paid Romero 
49 per cent, of the net. I find another road comes out near Langey Bros., 
and have asked them to act as oui' agents there. Pretty near as much 
stock comes out there as at Rio Biarra. Have not Rio Biarra for June 
yet. James Smith at Crickamola will not do. Old "Uncle George" 
promises to find some one who will make collections at this difficult place. 
Romero superseded Kinkaid at Chiriqui, and took it up himself. I will 
get him "adjusted" m a month or two as well as the others. I believe 
this road is going to be a good thing. 

July 9th, — Sleeping over the propositions made by Parades, I am forced 
to the conclusion that they are not for our good. The sudden flop of 
Valverde, while he may think it a master stroke of diplomacy, looks to 
me a little dubious. If the quantity of ground was not so large, I would 
be in favor of letting them have it, for the sake of peace and diplomacy, 
but that land embraces some of om- best territory, as I understand it, 
and I believe it worth fighting for. I presume they would produce, in 
a lawsuit, a permit that would antedate ours, though we firmly believe 
that ours was filed first, and that our work had progressed considerably 
before they thought of filing an application to cultivate. These people, 
however, swear in all kinds of directions when it suits their purposes, 
and there is no telling where we would land in a legal action. 

The secm'ing of confirmatory or ratifying action by the Columbian 
congress is to my mind purely problematical, and would depend on the 
caprice of the members of that bod3\ On the whole, it might be better 
to save our ammunition for later requirements. No matter what way 
you think of the matter, please write me a separate letter that I may 
show the Alcalde and Valverde, giving your decision. 

I regret that I am unable to save you the trouble and annoyance of 
these vexatious questions and verbose correspondence, but the exigen- 
cies seem to require it. 

Sincerely yours, 

(Sd) R. K. Warren. 



July 2S, 1903. 
Sefior Ramon M. Valdes, 
Panama, Colombia: 

Dear Sir, — Mr. Warren has sent me an English translation of your letter 
of the 13th instant, addressed to Dr. Valverde at Bocas del Toro, together 



M 

with a copy of his (Mr. Warren's) letter to yoa of the ISth instant. I note 
from yoor letter that "'there is an undeistanding by which Colombia will 
not e^ffiicise jniisdietion on the left mazgin of the Sirsaola River, nor will the 
Kepublic of Costa Sica esercise Jurisdiction on the ri^t ade or mai^m of 
said river until sudi time as the boundary ? ^» all have been maited out in 
ecmfonnity with the decMon of the Arbiter tiiat decided the boundary 
question." I note further tiat Dr. Guerra, Secretary of Finanee, called 
attention to the fact thai the eontiact between the Government and 
B<Hneio provides that the tramway be jdaced on t2ie ri^t and not on the 
Mt ade of the river. You will, however, please caJl his attention to the 
fact that that CKHitraet [wovides that the tramway connect Gadocan with 
the right bank of the river, and that, since Gadocan is on the left ade of 
the river, it would be a j^yacal imposability to ci(Hni% with the terms 
of that contract without connecting the left as wdl as the ri^ht bank 
with the port of Gadocan. 

It is. therefore, perfectly dear that the woid "i^t" instead of "Irft" 
was used in the original eontiact through error. I appreciate Dr. Gmora's 
kindness in coiieeting that error when the tranter was made to me, and 
would, if I could do so conastently. be ^ad to comply with his suggKtion 
tJiat a further agreement be entered into to the effect that I would not 
h<^ Ae ColomlMan government responsible for any interferenee in my 
op^ations upim the part of the. Costa Bica ^vemment. As Dr. Guerra 
win readily understand, I cannot a^oid to waive my li^ts to Colombia's 
jHotection, ance, ^ould I do so, I would be left wbolly without protection, 
as I have no contract with the Costa Bica government, hence could expect 
no protection fnmi that source. I m^ust. therefore, ask that you urge 
tliat the tramway [dans, as sulnnitted, be approved. 

I have beai informed tibat the Costa Rica government has refused to 
permit my agrait to build a cranmissary on the left margin of the river. 
and that that gavemment objects to the landing of my laborers at Gado- 
can. All such interference retards my work, and makes it more expensive. 
I have engaged, at a heavy expense, an expert engineer, who is to leave 
for Boeas and Gadocan in a few days for the purpose of planning the port 
improvements, after which it is my intention to push that work, the 
tramway and other improvements, rapadly. I trust, therefore, that you 
can induce the Governor or Secretary of Finance to make such representa- 
tions to the national government at Bogota that will lead to the prompt 
app(Hntment of a j<Hnt Colomlwa and Costa Rica commission to fix the 
boundary line. That, it appears to me, is the practical solution of the 



N 

difficulty. If the Governor does not care to address the national govern- 
naent at Bogota regarding this matter, would thank you to do so. 

Kindly write Mr. Warren at Bocas del Toro regarding this matter, as 
weU as myself here. 

Please present my compliments to Dr. Guerra, expressing to him my 
appreciation for the many courtesies extended to me during my recent 
visit to Panama, and with kind regards to yourself, I am. 

Yours respectfully, 

H. L. McCoNNELL. 

[Enclosed in Letter io Mr. R. K. Warren, Sept. 19, 1903.] 

Sept. 19, 1903. 
Mr. 0. F. Bolder, 

Bocas del Toro, S.A. : 

Dear Sir, — On my return to Mobile last Tuesday, the 15th inst., I found 
your letter of the 1st. T note from that letter your statement that I 
accepted your proposition that the Sixola undertaking be handled on a 
similar basis to that of the Rio Biarra plantation. I think, however, 
that you are somewhat in error. When you made that suggestion I replied, 
if I remember correctly, that I intended to interest both you and Mr. 
Warren in the enterprise, but did not go into details as to how, explaining 
to you that it would be impossible to do so then on account of my inability 
to furnish the entire capital to carry out om* plans. It never was my 
intention, and I thought you understood that, to interest you in the same 
way as you are interested in Rio Biarra, but it was then, and is now, my 
desire that you and Mr. Warren both be interested in the entire business ; 
that is, not simply in the growing of the fruit, but in the growing, shipping, 
and sale, — in other words, that you be interested in the business in its en- 
tirety. 

It is stiU impossible for me to say just what arrangement can be made 
with the parties who may furnish the capital. However, while I did not 
explain to either you or Mr. Warren, it is my intention to try to arrange 
for stock for you both without cost to you. That basis of arrangement is 
certainly the best that could be done for you, as the parties who must 
furnish something hke $500,000 cash to carry out our plans would cer- 
tainly not entertain the idea of allowing you 49% to be paid for in profits, 
and you must certainly reahze that. 

I hope that the arrangement that I suggest will be satisfactory to you, 



o 

and that j-ou will ad^-ise me prompt!}- as to how much stock in a 8500,000 
company you feel should be pro^^ded for you in the waj- suggested, 
also as to salary. Of coui-se, I cannot guarantee that j^our ideas will be 
met, but would hke to know what the}' are, so that I may have them before 
me for guidance. 

I must say that the tone of your letter is disappointing to me, and I 
feel that it is imcalled for. as it has been my intention, and stiU is, to be 
liberal ^ith you in this matter. I appreciate the fact that you have done 
hard and valuable work, but at the same time you must not forget that all 
the financial risk has been and is yet for my account. 

When in New York, I discussed this matter with ilr. Keith, and sug- 
gested that his company become interested in the imdertaking. but he 
argues against its being carried out, and finally requested that I wait until 
he received ilr. Peroutet's report, regarding the uncultivated lands and 
general situation in Changuinola. As I found that ^Mr. Keith would not 
at that time agree to join me unless possibly he might, had I forced the issue, 
on accoimt of Costa Rica's jurisdiction over the territory and the conse- 
quent difficulty of importing railroad iron, machiner}' for harbor improve- 
ments, etc., I concluded that it would be better to defer the organization 
of the company temporarily. In the mean time I will make an effort, 
through the State Department at Washington and other sources, to over- 
come that difficulty, and, while that is being done, wiU myself supply the 
money to cany on the planting and other work that you are now doing, 
and at the same time arrange for a dredge, other machinery and tools 
wanted for the port work, also for raUroad material. 

I presume that Vou are investigating the rock situation, and trust that 
I will soon have your report as to that with sample requested by Col. 
Wrotnowski. Please investigate, too, and report whether or not there is 
Manwood timber convenient for making ties, also whether you can find 
convenient to the proposed raiboad fine laurel, nisferro, or other hard 
wood suitable for caissons and piling for the breakwaters and lagoon work. 

I presume that Mr. CoUins is pushing the work of surveying and platting 
the river and railroad route. 

Before lea^-ing Bocas, I suggested that you send your orders to Mobile 
for provisions which you are now using in considerable quantities, and 
would be glad you would do that, as it is necessar}- for us to economize 
as much as possible in this work. 

I greatly hope that you have entirely regained your health, and that 
you vdll have no further attacks of fever. 

Yours trtily, 

H. L. McCoxxELL. 



LiMON, 9th October, 1903. 

Felipe J. Alvarado & Co. 

San ,los6, Limon, Pimtarenas, Costa Rica. 

Mr. H. L. McCoNNELL, 
Mobile : 

Dear Sir, — We beg to answer your letter of the 24th of last month to 
inform you that we have put your case before the Government, and their 
answer is that it is very premature to decide anything regarding the terri- 
tory in question, therefore they decline to consider it for the present. 

Our Government has sent a lawyer with full powers to Bogota to decide 
that question, and we think that it will finally be settled before the end 
of the present month. 

We would advise you to wait until the end of the month, when we will 
know something definite and then will inform you. 

We are very sorry that our efforts have not been more successful, but 
it has not been our fault. 

Youi's very truly, 

Felipe J. Alvarado & Co. 



[Extract from Letter to H. L. M., dated Bocas, October 13, 1903.] 

I do not know what to say of Parades. He is much put out at your 
refusal to give him a contract to plant. Of course you know that he is 
not "for" us, never was and never will be, as long as the United Co. is 
against us, no matter what we have done or will do for him. I am of 
opinion we would have his double-faced powers, if he has any, against 
us on any issue between us and the United. I believe that money or pres- 
ents bestowed upon him is absolutely wasted. Of course we cannot force 
him to do right, but we can fight him if he does very wrong. "When the 
question of Ogilvie going across our pickets was up the other day, he 
promised Bolder to give him (Bolder) an order stopping Ogilvie. Wlien 
Bolder went to get the order, Parades told him that he had already given 
the order to the Comisario at Sixola, and the order, on investigation, 
proved to be practically permission for Ogilvie to continue and did not 
stop him in the least. The United Co. owns this Alcalde. With all this 
before me, I still think it would be well for us to placate this person in 
some mamier. He would fail on any contract he undertook, and, if we 
gave him land to plant, he could not plant it unless we gave him the money. 
He still claims that his "titles" are coming from Bogota soon. I think it 



might be well to give him a little money now and then, the whole not to 
exceed $400 to $500 silver, spread over several months and dependent 
on good behavior towards us. 

I declare I am at sea on this Alcalde proposition. He is a hard or dan- 
gerous man to fight from our standpoint, and too dishonest and unscrupu- 
lous to pay to be honest and do right. 
With regards, I am 

Yours truly, 

R. K. Warren, Mgr. 

October 19, 1903. 
Messrs. F. J. Alvarado & Co., 
Port Limon, Costa Rica : 

Gentlemen, — Your valued favor of the 9th inst. has been received. I 
fear that my letter to you was not as clear as it might have been. What 
I desired was that in case Costa Rica could not be induced under her tem- 
porary jurisdiction to recognize my concession issued by the Colombian 
Government that you would ascertain the best arrangements that could 
be made with Costa Rica for importing machinery, railroad rails, etc., 
through Bocas del Toro or Limon for making the improvements contem- 
plated "by the concession and for doing the work. In other words, if 
Costa Rica will not recognize the Colombian concession, I desire to know 
whether any special arrangements can be made as per above, and , if the 
Government will not do this, whether or not there is any law prohibiting 
such improvements as contemplated, provided they are treated as private 
properties and not special concessions, also whether the supplies could 
be landed at Gadocan from the same ship in which they were imported 
through Limon without the necessity of transhipping from that place. 

I note that you think that the boundary question will be decided before 
the end of the present month, but my impression was that after the ap-, 
pointment by the two Governments of a joint commission it would be 
necessary to survey the line, which would require some months at least. 
If you find that by the close of the month the question has not been ad- 
justed as expected, I would greatly thank you, if not too much trouble, 
to again present the matter to the Government, and ascertain just what 
my legal rights are or what special arrangements, if any, can be made under 
Costa Rica's jurisdiction, advising me the result. 

Yours truly, 

H. L. McCONNELL. 



R 

Oct. 21st, 1903. 
Mr. H. L. McConnell : 

My dear Mr. McConnell, — I beg now to enclose to you letter of Dr. 
Valdez, dated September 26th, together with letter of Julio Guerra, dated 
September 10th, and press copy of the "resolution" of the Panama Gov- 
ernment in its feeble attempt to annul our Godocan Railway concession, 
all of which have the English translation attached, and of which I retain 
copies. 

I also enclose the original of Mr. Valdez' letter of October 4th, which was 
omitted when I sent you the copy of the translation by the "Fort Gaines." 

The above letters and copy of the "resolution" of, the Panama Govern- 
ment were received by me on Saturday, the 18th inst., through Dr. Val- 
verde, who found them in the post-office here, after his return from Panama 
and Colon. Of course the letter should have been delivered to me long 
before, as I send to the post-ofHce on the arrival of every vessel coming into 
port, but it was held for Valverde. 

This new correspondence adds very little to the knowledge you already 
had of the situation, but the copy of the "Resolution" and the humiliating 
confession of Dr. Valdez, it seems to me, would be good reading for the 
Washington authorities, if you have thought it wise and proper to use 
the United States in securing your rights. Valdez' letter expresses more 
clearly the conditions in this country than any argument by attorneys 
or others before the State Department could portray. It is the cry of 
justice against the arbitrary acts of a rotten military despotism, for the 
country is not really a Republic. I yet believe that the quickest and 
most effective manner of dealing with the situation is through the United 
States Government. 

I have just received from Mr. Dolder and Mr. Collins the enclosed cor- 
respondence. The sea has been so high since the day before the "Morgan" 
sailed (14th) that it has been impossible to get into Sixola. The sea 
looked like going down on Sunday, and at night I sent the "Esmeralda" 
and "Amelia" down with a tow of three lighters. A heavy storm caught 
them, and two of the lighters were so badly damaged by bumping in the 
heavy sea that they nearty sank. The "Esmeralda's" tow rope broke 
off the bar and wrapped around the propeller, and Grenaldo had to dive 
down in the heavy sea for over an hour to untangle it. Meanwhile the 
engine broke down and pieces of the stern and bow were torn away. The 
"Amelia," being heavier, fared better, and her engine did not stop. The 
bar was so dreadful that no boat could go over it, and the "Amelia" towed 



back the lighter and "Esmeralda to" Bocas. The sea is stiU rough, but 
I hope to get in on Sunday night, if possible. I have nine lighters in the 
succor service, and am using all the launches at available moments to hurry 
the Sixola matters through. If the weather had held good, I could have 
had six or eight more loads in Sixola by this time. I fear we began this 
work too late, however, but, if the "Esther" comes, I will send the "Es- 
meralda" with a fleet to Gaudocan, and let her await opportunity of 
getting over the bar, and put the "Esther" on her run up Rio Biarra. 
I have ample hghters at Rio Biarra now for succors, but wiU send two 
more after the "Gaines" gets away Friday. Four or five of my hghters 
are unfit for succor carriers, and I am really short of lighters for this pur- 
pose, under the pressing circumstances. Please take careful note of 
Dolder's remarks about Mr. Keith's reported position. I beheve there 
is something in these reports, because of the very satisfied air of our 
German point friends (?). 

I regret exceedingly to have to send to you the troublesome mail that 
is enclosed herewith, but you are the only one able to cope with the situa- 
tion as it stands now, and I wish you most signal success in handling the 
matters which your attorney at this end has to turn over to you. 

With much regard, I am 

Sincerely yours, 

R. K. Wareen. 



[Extract from Letter of Oct. 23, 1903.] 

Dear Mr. McConnell, — 

* * * I regret that Alvarado failed to secure any 

definite action by Costa Rica. 

I will take every precaution in getting the goods sent by the "Gaines" 
to Sixola without danger. The sea is calm to-day, and they will go to-night 
when I get a good lighter for them. I will try to get them in free of duty. 

You feel about the lawyers and others here just as I do, but we are 
here, and the only way to deal with them is to be as deceitful as they are, 
and try to hoodwink them just as they do us. In other words, "fight the 
devil with fire." I suggested the letter to Valverde on these grounds. 

I will be glad to receive copies of Mr. Peyroutet's report. There is no 
doubt but that the United is going to try to get all the Sixola lands it can. 

I fear, dear Mr. McConnell, that I am very unlucky in matters in which 



I am personally interested financially, and I Ijelieve that I carry bad 
luck to those with whom I am interested. I was born to be a servant and 
not an independent man. I can do fairly well for others : for myself there 
is always failure. In view of these thoughts I hereby renounce any and 
all pecuinary interest in Sixola which you kindly intended to set aside for 
me, and beg you not to think of giving me any interest whatever in that 
enterprise. When the time comes, if you think well of my services and 
character, you may give me such salary as the enterprise can afford, but 
aside from that I will accept nothing else. This is for the good of your 
undertaking. Of course I shall work for you and the success of Sixola 
with heart and might, but I think it better for the success of the scheme 
that I be not pecuniarily interested. 

With regards, I am 

Yours truly, 

R. K. Warren. 



Oct. 25th, 1903. 
My dear Mr. McConnell, — The sea was smooth as glass yesterday, and 
I sent to Sixola the large quantity of merchandise you sent from Mobile. 
Of course I used the best lighter we have for it. I sent also two lighters 
succors and one of lumber, in all of which I distributed 2 drums gasoline, 
some seco, some sugar, some rice, and other supplies required by Mr. 
Bolder. I sent 3 launches to convoy the shipment, as my experience 
has taught me that it is dangerous to go out in the open sea with a train 
of lighters. If the sea remained calm, there would be no danger, but a 
squall coming up means destruction. I am most happy to state that at 
this writing, 7.30 a.m., the sea remains perfectly smooth, and at this hour 
the lighters should be all inside the bar safe and in perfect condition. I 
expect the launches back by this evening with the empty lighters already 
there. 

Yours truly, 

R. K. Warren. 

There are but 3 to 4 lighter loads more of succors to move from Rio 
Biarra. 



Oct. 27th, 1903. 
Mr. H. L. McConnell, 
Mobile, Ala. : 

Dear Sir, — Mr. 0. F. Bolder is up to-day from Sixola, having taken 
passage on the last launch leaving the bar on Sunday afternoon. It is 
lucky we got the goods and things in just as we did, otherwise it might 
be a considerable time before we could get across the bar. The sea is 
raging to-day,- and from looks of the weather I fear the bad season has 
set in, though it may get calm enough to let us in with the three lighter 
loads of succors and further provisions which Bolder is buying to-day for 
the winter. 

Mr. Bolder desires me to procure for him a burning brand with the name 
"H. L. McConnell," so he can stamp all your utensils, stock, etc., with it. 
I bring the matter to your attention, not ordering. 

There is nothing new in the situation other than the within. 
Yours truly, 

R. K. Warren, Atty. 



[Copy in Letter to Mr. R. K. Warren, Nov. 13, 1903.] 

November 1.3, 1903. 
Messrs. Morales & Valdes, Attorneys, 
Repubhc of Panama: 

Gentlemen, — Your Mr. Valdes' letter of September 26th, addressed to 
Messrs. Valverde and Warren at Bocas del Toro, was greatly delayed in 
reaching the latter. He, however, finally received it, and forwarded it 
to me with an English translation. That letter, together with enclosures 
and your previous one addressed to Br. Valverde at Colon, explained fully 
the situation concerning my concession as far as Colombia and what was 
formerly the Government of Panama are concerned. Now that Panama 
has declared her independence, Colombia's action in declaring the conces- 
sion null and void amounts to nothing, and the Bepartment of Panama 
could, of-course, not suspend it without the consent of both parties to the 
contract. 

Please make an effort to obtain the tacit consent of the proper authori- 
ties of the Repubhc of Panama for me to continue the improvements as 
contemplated by the terms of the concession, and as soon as the indepen- 



V 

dence of Panama is established make an effort to have the concession ratified 
by the Assembly of the new Government. 

"When my power of attorney is required to enable you to act in this 
matter, please prepare and send to me one that will cover the necessities 
of the case, and instruct me before whom it shoiild be executed. 

The United States Government has requested Costa Rica to permit 
my work to continue under her temporary jurisdiction, hence there can 
be no valid objection on the part of Panama to my doing so. 

Mr. Warren will send you a draft for the amount requested in a previous 
letter to Dr. Valverde. 

Trusting that your efforts in my behalf with the new Government will 
prove successful, and awaiting your advices, I am, 

Yours truly, 

H. L. McCONNELL. 



The Purchase of DiGiorgio's Plant. 

Mobile, Ala., U.S.A., Augu.st 1, 1903. 
Me. M. C. Keith, V. P., 

Whitehall Building, 17 Battery Place, New Yoi-k: 

Bear Sir, — Mr. McConnell, who left last night for Birmingham, requested 
me to acknowledge receipt of your favor of the 27th ulto., also to advise 
you that we had at last disposed of our Bocas opposition so far as DiGiorgio 
is concerned. I enclose you herewith for your information a copy of the 
articles of agreement between that Company and ourselves, which is self- 
explanatory, and which, I believe, will meet with your approval. 

Mr. McConnell will write you further regarding this and other matters 
upon his return, which will be in a day or two. 

Yours truly, 

T. D. Nettles, 
Secy, and Treas, 

UNITED STATES OF AMERICA. 

State op Alabama, 
County of Mobile. 

Know all men by these presents that the DiGiorgio Importing & 
Steamship Company, a corporation created by and existing under the 
laws of the State of Maryland, party of the first part, for and in considera- 



w 

tion of the sum of twenty-five thousand dollars, to it in hand paid by the 
Camors-McConnell Company, a corporation, party of the second part, 
the receipt whereof is hereby acknowledged, does hereby grant, bargain, 
sell, convey, assign and deliver imto the said party of the second part, 
its successors and assigns, aU the property of every kind and description 
belonging to the said party of the fu-st part situated at or near Bocas del 
Toro in the United States of Colombia, consisting priacipally of three new 
Wolverine launches, named Aimitta, Amelia, Merietta, twenty-two (22) 
lighters (eighteen or twenty of which are new and two or four old, prob- 
ably bought of Wilson), one boat supposed to be a sloop, all lighter ma- 
terial, such as metal, lumber, gelt, etc., all rope, lanterns, and all loading 
paraphernaUa, all notes of C. W. Beckmann & Co., amounting to $6,500.00 
and maturing from time to time, within a period not exceeding five years 
from the date hereof. And the said party of the fii'st part does hereby 
agree and bind itself to deliver all of the foregoing property to the said 
party of the second part as soon as possible. 

vVnd for the same consideration paid to the said party of the fu-st part, 
it, the said party of the first part and Joseph DiGiorgio, do hereby agree 
and bind itself and himself that they and each of them shall for a period 
of ten years from the date hereof refrain and keep from either directly 
or indirectly engaging in the shipping or growing of bananas at or near 
said Boca del Toro. 

And the said party of the fii'st part for itself and its successors covenants 
that it has a fee-simple title to the property herein described, that it is in 
quiet and peaceable possession of the same, that it has a good right to 
sell and convey said' property, and that it wiU warrant and forever defend 
the same against the claim of all persons now claiming or hereafter to 
claim the same. 

Witness the hands of DiGiorgio Importing & Steamship Co. and of 
Joseph DiGiorgio, in triplicate on this 31 day of July, 1903. 

(Signed) DiGiorgio Importing & S.S. Co. 
Joseph DiGiorgio, Pres. 
(Signed) Joseph DiGiorgio. 

Witness. 
T. G. McDoxiGAL. 
C. W. Sinners. 

Acknowledged and certified to before the Consul of Colombia, at Mobile, 
Ala., July 31, 1903. 



X 

August .3, 1903. 
Mr. M. C. Keith, Vice-President, 
United Fruit Company, 

Whitehall Building, 17 Batteiy Place, New York: 

Dear Sir, — Refemng to your letter of the 27th ulto. and Mr. Nettles' 
of Saturday, enclosing you a copy of the bill of sale of the DiGiorgio prop- 
erties, I have to state that I regretted making the arrangements, since the 
United Fniit Company felt that the money obtained in that way would 
help him in his Eastern fight with you, but our situation in Bocas was 
such that we could not afford to have him continue there; especially when 
there was a possibility that his line to that port would become permanent. 
Were we growing a larger amount of fruit, we could have afforded to have 
continued the fight, but of late our cargoes were growing smaller, while 
DiGiorgio's were increasing. 

In reply to the latter part of your letter I wish to state that it is my 
sincere desire to continue working in harmony with your Company. I, 
however, do not yet feel disposed to abandon the idea of improving Ga- 
docan as a harbor. Nearly all of the expert harbor improvement en- 
gineers seem to have work on hand, hence I have found it difficult to 
arrange to have the situation investigated, but I now expect to have 
a reliable opinion on the feasibility and cost of the undertaking in a few 
weeks, after which I will either see or write you concerning the matter. 

Yours ti-uly, 

H. L. McCONNELL, 

President. 



CHAPTER 2. 

The agreement for the formation of the Camors=McConnell Company, in 
which McConnell agreed not to engage in any banana business except 
in connection with the said company. 

This Agreement made between Andrew W. Preston of Brookline in 
Massachusetts of the first part, and J. B. Camors of New Orleans and 
Herbert L. McConnell of Mobile, doing business under the firm name 
of Camors, McConnell & Company of the second part, and Louis Wein- 
berger, Jacob Weinberger, Victor Camors and Charles Weinberger of the 
third part, and Rudolf Braden of Boca del Toro, Republic of Colombia, 
J. W. Kroesmann, Ernst Braden and John C. Dehls, doing business under 
the firm name of Kroesmann, Braden and Company of the fourth part; 

Whereas the said Camors, McConnell & Company are engaged in the 
business of growing, transporting and selling tropical fruits, and desire 
to transfer all of their said business and all their good will, contracts, 
choses, -franchises and privileges, used, useful or convenient in conducting 
said business or appertaining thereto, to a corporation as hereinafter 
described, and the other said parties of the third and fourth parts are 
interested in the said business of the said Camors, McConnell & Company, 
and the said Preston desires to obtain an interest in the said new cor- 
poration : 

Now, THEREFORE, in consideration of the premises and of the mutual 
agreement hereof, and of the sum of one dollar unto the said other par- 
ties by the said Preston in hand paid, the receipt whereof is hereby ac- 
knowledged it is hereby agreed as follows: 

1st. The said Preston shall cause to be formed a corporation under 
the laws of the State of New Jersey to be called the Camors, McConnell 
Company hereinafter referred to as the new corporation, with a capital 
stock of sixty thousand one hundred and twenty-five dollars, divided into 
four hundred and eighty-one shares of the par value of one hundred and 
twenty-five dollars each, with power to carry on the present business 
of Camors, McConnell & Company, and to be governed by a Board of 
five Directors. The expense of forming the new corporation shall be borne 
by it. 



2nd. The said Camors, McConnell & Company shall sell, assign and 
transfer to the said new corporation all of the property, effects, good 
will, contracts, franchises and privileges, and all books, papers, choses 
and documents used in or appertaining to their said business, whether 
vested or standing in the name of the said copartnership, or of any in- 
dividual member thereof, or of any other person, firm or corporation, 
and in return therefor the new corporation shall issue to the said Camors, 
McConnell & Company three hundred and twenty-one shares of its cap- 
ital stock, full paid and non-assessable, and shall assume the debts, lia- 
bilities and obligations of the said Camors, McConnell & Company spe- 
cified in the second schedule hereto. The said Camors, McConnell & 
Company hereby guarantee that they own and will assign and transfer 
to the new corporation hereinbefore described, the property and effects 
specified in the first schedule hereto. It is expressly understood and 
provided that the plantations which are now owned and held by the 
Boca del Toro Banana Company, but not its loading plant, shall be 
included in the property hereinbefore described, as used in and apper- 
taining to said business. 

3rd. The said Preston shall buy and the said Camors, McConnell & 
Company shall sell and deliver to the said Preston and to such persons 
as he shall appoint, one hundred and sixty-one shares of the said capital 
stock of the new corporation for the sum of thirty thousand dollars pay- 
able in cash. To the end that the said Preston shall retain, so long as 
.he desires, the power to elect three of the five directors of the new corpo- 
ration, and the other stockholders shall have and enjoy the power to elect 
two of the five directors, the said Preston agrees to and shall transfer and 
assign one of the said one hundred and sixty-one shares so deliverable to 
him, to a trustee of his own nomination, to be held by said trustee, irrev- 
ocably and perpetually in trust to vote in person or by proxy upon said 
share in all elections of Directors of said Company, for such three direc- 
tors as the said Preston or his assigns shall nominate and for such two 
Directors as the owners of the one hundred and sixty shares of the capi- 
tal stock retained by the second, third and fourth parties or their assigns 
shall nominate; but the said one share of stock so transferred to said 
trustee shall have no vote for any other purpose, and the holder thereof 
shall have no power to vote upon the same for any other purpose what- 
soever at any meeting or proceeding of the said new corporation, and 
no dividend shall be declared upon said stock, it being the purpose of this 
agreement that the second, third and fourth parties, and their assigns 



shall receive one half of the dividends declared by the new corporation, 
and the said Preston and his assigns shall receive the other one half 
thereof. Said transfer to said trustee shall be upon the further trust, that 
if by reason of any proceeding, judgment, decree, finding or order of any 
court or other^^dse, the said share and its holder should despite the above 
written provision, share in dividends or in distribution at winding up, then 
the same shall be by said trustee divided ratably among the holders of 
all the other shares in said corporation, according to their respective hold- 
ings at the time such di\'idends or distribution shall occur. 

4th, The said Preston hereby agrees to subscribe for eighty addi-- 
tional shai'es in the capital stock of the new corporation and pay for the 
same the sum of ten thousand dollars in cash immediately upon incor- 
poration, and the said parties of the second, third and fourth parts hereby 
agree that they will subscribe for eighty additional shares in the capital 
stock of the new corporation, and pay for the same the sum of ten thou- 
sand dollars in cash immediately upon incorporation. 

5th. The said J. B. Camors and Herbert L. McConnell, Louis Wein- 
berger, Jacob Weinberger, Victor Camors, Charles Weinberger, Rudolf 
Braden, J. W. Kroesmann, Ernst Braden and John C. Dehls, hereby jointly 
and severally covenant and agree that they wall not either individually 
or by or thi-ough a corporation jointly or severally, directly or indirectly 
engage in the growing or importing or selling of tropical fruits or any other 
business directly or indirectly in competition with the new corporation, 
or with the United Fruit Company, except through the new corporation, 
until after the said Camors, McConnell Company, the new corporation, 
shall have ceased the active continuance and prosecution of the business 
of importing and selling such fruit, or shall have failed to have shown 
a profit for any calendar year after 1899. All profits earned by the new 
corporation shall be divided every three months by dividends declared. 
This provision shall not exclude any of the parties hereto from being 
concerned in the business or businesses of the Bluefields Steamship Com- 
pany, Ltd., of the Camors-Weinberger Banana Company, Ltd., or the 
Orr-Laubenheimer Company, and provided further this provision shall 
not exclude Kroesmann, Braden & Company, J. W. Kroesmann, Ernst 
Braden, John C. Dehls or Rudolf Braden from engaging in a general 
mercantile business or from exporting cocoanuts or other produce ex- 
cepting tropical fruits. 

6th. The said second, third and fourth parties hereby agree that they 
mO. 6htain from all persons directly or indirectly interested in the part- 



nership of Camors, McConnell & Company, and so far as they are able 
to do so from all persons such conveyances and assignments as shall be 
necessary in the legal opinion of H. Pillans, Esq., to carry out these 
agreements. 

7th. The said second, third and fourth parties jointly and severally 
for themselves, their successors, executors and assigns covenant that they 
will execute all deeds and assurances, and do all things which shall be 
necessary or convenient more fully and perfectly to vest in the new cor- 
poration the good will and effects provided herein to be vested in the 
new corporation or intended to be so vested, and will execute all such 
further instruments and do all such further things as shall be necessary 
or convenient to carry out these presents according to the true intend- 
ment thereof. 

Sth. Said Preston agrees that he will use his influence to the end that 
the manager of the new corporation in the United States shall be H. L. 
McConnell so long as he Avill act, provided said McConnell is in his opin- 
ion and in that of a majority of the remaining shareholders in the said 
new corporation other than himself and his assigns, a competent and 
fit person therefor, and that in case of the unfitness of said McConnell 
in his opinion and that of the said remaining shareholders or of his unwill- 
ingness to longer serve, then that he wall use his influence so that the 
manager of the said new corporation in the United States shall be a person 
agreeable to the shareholders, other than the said Preston and his assigns, 
provided such manager shall be in his opinion a competent and fit person. 

9th. The new corporation shall purchase from the said Kroesmann, 
Braden & Company all their right and the rights of John H. D. Finke 
in and to a banana farm at Boca del Toro now managed by them, for the 
sum of eight thousand dollars in gold, upon receiving sufficient documents 
of sale according to the laws of the Repubhc of Colombia, and the new 
corporation shall buy from the said Kroesmann, Braden & Company its 
loading plant, consisting of two steam launches, and eight lighters at the 
said Boca del Toro, for the sum of thirty-one hundred and seventy dol- 
lars, plus the cost of one new engine, which has been put in one of the 
launches "Mariposa," not to exceed one hundred dollars (the Ust of the 
said loading plant is hereto annexed in the third schedule) and the new 
corporation shall pay the said Braden three hundred dollars for services 
rendered in superintending the farms for the said Camors, McConnell 
& Company. 

10th. The said new corporation shall buy the present existing load- 



ing plant now belonging to the Boca del Tore Banana Company, now 
consisting of three launches, one sloop and ten or eleven lighters at such 
valuation as shall be agreed upon between the said Rudolf Braden and 
Michael T. Snyder, and in case they cannot agree then such valuation as 
shall be designated by such person as shall be selected by the said Braden 
and Snyder. 

11th. The said new corporation shall enter into an agreement vfith. 
the said Kroesmann, Braden & Company, extending for a period of ten 
years, which shall contain substantially pro%dsions sindlar to the provi- 
sions contained in the agreement between the Boca del Toro Banana Com- 
pany and Kroesmann, Braden & Company, dated the 15th of October, 
1898, in paragraphs numbered 10th, 11th, 12th, 13th, and 17th, and the 
last said contract shall contain a provision whereby the new corporation 
shall agree not to charge any greater amount for freight for goods shipped 
for account of Kroesmaim, Braden & Company from New Orleans to 
Mobile for shipments to Boca del Toro by steamers of said new corpora- 
tion than it is obliged to pay for the same, and the said new corpora- 
tion shall use its efforts to keep in effect existing verbal arrangements 
■with respect to carrying the goods above described between New Orleans 
and Mobile. 

12th. It is also agreed between the parties hereto that the Directors 
of the new corporation shall receive no compensation for acting as such 
Directors. 

In Witness Whereof the parties hereto have set their hands and seals 
this 8th day of December, a.d. 1899. 

(Sgd) Jacob Weinberger. Andrew W. Preston, 

(Sgd) Charles Weinberger, by B. W. Palmer. 

per pro Louis Weinberger. Herbert L. McConnell. 

(Sgd) J. W. Kroesm.ann. Camors, McConnell & Co. 

(Sgd) Ernst Braden. Louis Weinberger. 

(Sgd) John C. Dehls. Kroesman, Braden, 

by R. Braden. 

(Sgd) J. B. Camors. 

(Sgd) V. Camors. 



CHAPTER 3. 

The Romero concession and the official action of Colombia and Panama 
suspending and declaring the same to be void, also the declarations 
supposed to constitute rights to the possession of the public lands entered 
upon by McConnell. 

THE ROMERO CONCESSION. 
(Dated 2iid AprO, 1903.) 
Contract No. 44. 

Julio Giierra, Secretary of the Treasury, duly authorized by the Gov- 
ernor of the Department, party of the first part (which hereinafter will 
be called the "Government"), and Ricardo Roman Romero, in his own 
name, party of the second part (who will hereinafter be called the "Con- 
cessionary"), have made a contract on the follcwng terms: 

1. The Concessionary obligates himself to construct and estabhsh at 
his own expense, a railroad to be run by steam, which puts in communi- 
cation the harbor called Gadokin, on the Atlantic Coast, in the District 
of Bocas del Toro, with the right bank of the Sixaola River, in the same 
District. 

2. To present to the Government, for its approval, a Plan and Profile 
of the undertaking within the three m.onths following the definite approval 
of this contract. 

3. To place the railroad at the service of the public 18 months after 
the Plan mentioned in the foregoing Article has been approved. 

4. To collect freight and passages in accordance with the tariff agreed 
upon with the Government, three months before the road is open to traffic : 
this tariff can be re^ased from time to time by the Government, and mod- 
ified in accordance with the fluctuations of the prices of the fruits which 
are carried. 

5. To give free transit to all mails, troops, baggage, ammimition, etc., 
and, in fact, to every employee in the service of the Government, with 
his equipment up to 200 pounds. 

6. To keep the road, and the cars, in good condition for a term of fifty 
years. 

7. To deliver the railroad to the Government with all its appurtenances, 
at the expiration of the fifty years fixed in the foregoing Article. 



8. Not to transfer this contract wthout the permission of the Govern- 
ment, it being an express condition that if the transfer is made to a for- 
eign individual or Company, that the provisions of Article 15, of the Law 
145, of 1888, be complied with. 

9. To guarantee the compliance with the obligation of clause No. 2 
with a personal security satisfactory to the Governor to the amount of 
$1,000. After the Plans have been approved, the Concessionary will put 
up a security of $2,000 as a guarantee of the comphance ■ndth clause 3. 

10. To renounce the subvention authorized by the law 129 of 1896. 
The Government obUgates itself : 

A. To concede to Ricardo Roman Romero, or to whomever may rep- 
resent his rights, the exclusive privilege for the construction and establish- 
ment of the railway run by steam, which puts in communication the har- 
bor called Gadokin mth the right bank of the Sixaola River, in the Dis- 
trict of Boeas del Toro. 

B. Not to allow, and to prevent another railway from being built in the 
privileged zone, which, it is understood, vnM be between two lines parallel 
with the railway drawn at the right and left of it, at one mile distant on 
each side. 

C. To secure the Concessionary, or his representative to whom his 
privileges may be assigned, full and peaceable possession of the privilege 
granted by this contract for 50 years. 

D. To permit the Concessionary, or his representative, to collect the 
passage and freight in accordance v\ath the tariff approved by the Govern- 
ment three months before the road is open to pubUc traffic. 

E. To permit the importation of machinery and other articles intended 
for the construction of the road and suitable for such use free of duty. 



General Conditions. 

First: The Government declares that before the law the road \^dll be 
considered as a pubUc accommodation. 

Second: In case the Concessionary should not comply -nith the obUga- 
tions entered into by this contract -nithin the time stipulated, the security 
■will become the property of the Department, and the privilege vvill become 
null and void, de facto. 

Third: The Concessionary may form a Company in order to carry on 
the work. 

Fourth: In case the work should be suspended for more than 6 months 



during the construction of the road, or the service after the construction, 
this contract T\ill be declared null and void, and the road will become the 
property of the Department, except in case of uncontrollable circumstances 
or the Acts of God. 

Fifth: This contract must be approved by His Excellency, the Governor 
of Panama, in order to be vahd. 

In witness wheeeof there are signed two copies of the same tenor in 
Panama, on the 2nd day of April, 1903. 

Julio Guerra. 

RiCARDO Roman Romero. 

Government of the Department. 
Approved. 
To be registered and communicated to the Assembly, and to be published. 

F. Mutis Duran. 
Juijo Guerra, 
Secretary of Finance. 



THE TRANSFER OF THE ROMERO CONCESSION TO 
McCONNELL FOR $100 (Colombian).- 

Republic of Colombia, Department of Panama. 
FiEST Notary's Office op the Circuit. 

Panama, May 1st, 1903. 

[First Copy of Deed No. 117 of this Date, by which Mr. Ricardo 

Roman Romero Transfers Certain Rights to Mr. Herbert L. 

McCONNELL.] 

Number 117. 

In the City of Panama, Capital of the Province and Department of the 
same name in the Republic of Colombia, on the first day of May nineteen 
hundred and three, before me,Octaviano Bienvenido Perez, first Notary Pub- 
lic of the Circuit of Panama, appeared Messrs. Ricardo Roman Romero and 
Herbert L. McConnell, males and of legal age; the first named a resident 
of Bocas del Toro and the second a citizen of the United States in transit 
in this city — both known to me, and they delivered to me a memorandurq 
to be converted into a public instrument, which copied literally reads as 



follows: — "To the Notary Public, No. 1, Present. I inscribe in your 
protocol of the current year an instrument by which, be it known that I, 
Ricardo Roman Romero, Colombian, of legal age and a resident of the 
District of Bocas del Toro, transfer, cede, and convey as a sale to Mr.Herbert 
L. McConnell, an American citizen in transit in this Department, all the 
right that I have acquired by the contract No. 44 which I made with the 
Government of the Department on the second day of the present month 
for the building and working of a steam tramway in the District of Bocas 
del Toro — said contract to be inserted in the same instrument or deed. 
By virtue of this conveyance Mr. McConnell acquires from this date all the 
rights possessed by me in the already mentioned contract, and he also ac- 
cepts and binds himself to comply with the obligations of the said contract. 
This cession I have made in consideration of the sum of One hundred 
dollars ($100) Colombian currency, which I have received to m}' entire 
satisfaction. Mr. McConnell signs this memorandum in proof of accepting 
same and will also sign the instrument. The Notary will add the necessary 
clauses to ensure the perfect validity of this instrument. April 30th, 1903. 
R. R. Romero. H. L. McConnell." 

The contract No. 44 mentioned in the preceding memorandum faithfully 
copied is as follows : (Here follows a copy of the Romero concession as found 
on page 6.) 

The Registration has been paid, as may be seen by the respective ticket 
annexed and which reads : — Republic of Colombia, Department of Panama 
— General Administration of Finances — Seventh Volume — I certify that 
on page three hundred and thirty-one (331) of the book for the inscription 
of the registration tax is to be found, bearing No. 242, the following: Pan- 
ama, April the thirtieth, 1903. Mr. Octaviano B. Perez has paid the 
sum of 0.20 twenty cents for the registration of a deed which Mr. Ricardo 
Roman Romero is going to execute by which he conveys to Mr. Herbert L. 
McConnell, for the sum of One Hundred dollars ($100.00) the rights he has 
acquired in a contract made with the Government relative to the building 
and working of a steam tramway in the District of Bocas del Toro. The 
Administrator General — Manuel E. Amador (L.S.) — Having read this in- 
strument, which was duly translated to Mr. Herbert L. McConnell by the 
Official Interpreter, Mr. McConnell not being conversant with the Spanish 
language, in the presence of the instrumental witnesses, Messrs. Enrique 
Cesar Julio and Ramon M. Valdez, males, of legal age and of this vicinity, 
known by me and having no impediment to act as such, it was approved by 
the contracting parties, to whom I made known the formalities of regis- 



10 

tration of the first copy within sixty days in the proper office — The 
Secretary of Finance being present stated that having been duly authorized 
by the Governor of the Department, he gives his permission to Mr. Ricardo 
Roman Romero in the name of the Government that he may transfer this 
contract to Mr. Herbert L.McConnell,and he therefore imparts his approval 
to this deed. Here follow signatures. Addenda. At this state and in the 
presence of the Secretary of Finances it was decided that clause first of this 
contract should be understood: that the right margin is the part of the 
river that remains to the right hand against the stream. Julio Guerra. 
Ricardo Roman Romero. Herbert L. McConnell. E. C. Julio. Ramon M. 
Valdez. Manuel E. Recuers, Official Interpreter. Octaviano B. Perez, 
Notary Public No. 1. 

This first copy which I now sign, seal and deliver to Mr. McConnell is in 
accordance with the originals and of this date. Octaviano B. Perez, 
Notary Public No. 1. (L.S.) 

Office of the Registrar of Public and Private Instruments, Panama, 
fourth of May of the year nineteen hundred and three. This instrument 
has been duly registered in two parts. The contract in the Book Number 
two (2) , duplicate pages (70 to 75) seventy to seventy-five, and the con- 
veyance in Book Number two (2), pages (143 to 144) one hundred forty- 
three to one hundred forty-four, and this instrument bears inscription 
number (118) one hundred and eighteen. The Registrar, Carlos Barona. 

The foregoing is a true translation of its original. 

The Official Interpreter of Bocas del Toro, 



May 13th, 1903. 



Edw. C. Outten. 



DECLARATION BY THE CENTRAL GOVERNMENT OF IN- 
VALIDITY OF ROMERO CONCESSION. 

(Dated 31st August, 1903.) 
Office of the Secretary of Hacienda, Bogota, 

31st August, 1903. 

Examining the contract made between the Government of the Depart- 
ment of Panama and Mr. Ricardo Roman Romero, regarding the construc- 
tion and exploiting of a railroad from the anchorage called Gadokin, on 
the Atlantic Coast, in the District of Eocas del Toro, to the right bank 
of the Sixaola River, it appears : 
■ 1. The Secretary does not find the power in the Governor to make the 



11 

contract in question, as the terms of the law No. 104, of the year 1892, 
regarding railroads, are not applicable to the case, and the powers eon- 
ceded to the Executive body by the said law cannot be extended to the 
Governors of Departments. 

2. That the law No. 129, of 1896, in regard to railroads authorizes the 
Governors of Departments only to declare, as of public utility, the work 
done on railroads which is executed in accordance with the provisions 
of the said law, and to concede subventions to such, but not to niake con- 
tracts Uke the one in question. 

3. That it is alone in the power of the Departmental Congress to give 
privileges for undertakings of this kind, and to decree their execution in 
accordance with article 105 of the Constitution and of article 129 of the 
Pohtical and Municipal Code. Therefore, for these reasons, having heard 
besides the opinion of the consulting lawyer of this Secretary, it is 

Resolved, That the Government abstains from approving the contract 
made with Mr. Ricardo Roman Romero for the construction and exploiting 
of the railroad in the Department of Panama, which contract, in the opin- 
ion of this office, is void if it is not made with the express authority of the 
Congress of the Department, or with its approbation. 

To be communicated to whom it maj^ concern. 

The Secretary of Hacienda, 
R. Ferreira, 
Bogota. 

THE SUSPENSION OF THE ROMERO CONCESSION BY 
GOVERNOR DURAN. 

Office of the Governor of the Department; 
Secretary of the Treasury; Sections, No. 78. 
Panama, September 9th, 1903. 
" Whereas: On April 2nd of the current year upon petition of Mr. Rich- 
ard Roman Romero, this office entered into a contract with the said gen- 
tleman, for the construction of a steam tramway which was to connect 
the small bay of Gandocan with the right bank of the Sixaola river in the 
said contract, which is numbered 44, by the 2nd Clause, the concessionnaire 
is bound to present to the government, for its criticism, within three months 
after its final approval, the plan and profile of the work, and, as a guaranty 
that he would fulfil this part of the contract, he offered as surety Mr. Her- 
bert L. McConnell, who executed the proper instnunent under date of the 



12 

20th of April. Subsequently on the 1st of May Mr. Roman Romero trans- 
ferred said contract to McConnell by deed Number 117 and with the con- 
sent of the undersigned. In due season Mr. McConnell presented the plan 
and profile required by clause 2 of the said contract, when examining the 
same it was seen at the first glance that the proposing party had made a 
mistake, undoubtedly involuntary, because the tracks for the railway run 
from the left bank of the Sixaola river to the Atlantic, to a small bay or 
inlet which does not appear on the official maps of that region, a mistake 
for which the concessionary camiot be made responsible, as it goes against 
his own interests, nor the Department either, for the same reason, and 
moreover because at the time when this contract was entered into it had 
no knowledge of the existence and less still of the place where this bay is 
situated, called Gandocan, since if that information had reached the 
government before it would not have entered into the said contract. 

"Now therefore it is resolved 

"1. Let there be cancelled the instrument of guaranty executed by 
Mr. Herbert L. McConnell in fulfilment of the obligation undertaken by 
Mr. Roman Romero in the 2nd clause of the said contract No. 44. 

"2. As long as the boundaries are not fixed definitely with the Republic 
of Costa Rica and as long as Colombia cannot enter upon the possession 
of the land that is coming to it according to the Loubet award, the terms 
of the said contract are suspended without the contracting parties incur- 
ring any responsibility on that account, since it has been shown that there 
was no bad faith on the part of either. 

"Record, notify and publish. 

"For the Governor. " The Secretary of the Government, 

"Julio Guerra." 



REFUSAI. OF THE GOVERNMENT OF THE REPUBLIC OF PAN- 
AMA TO RECOGNIZE THE ROMERO CONCESSION. 

[Translation.] 

Republic of Panama. 
Minister of Fomento. 
No. 33. 
Sec. la. 

Panama, Sept. 14, 1904. 

Mr. H. L. McConnell requests, in the foregoing memorial, that the 
Government of the Republic of Panama shall arrange with the Govern- 



13 

ment of Costa Rica that, provisionally and pending the settlement of the 
boundaries between the two Republics, no impediment shall be offered 
to the work in which he is now engaged on the spot denominated "Gan- 
docan," situated on the left bank of the Sixaola River. 

Although this Department has concluded that the Republic of Panama 
does not recognize as valid the contract entered into between Mr. Ricardo 
Roman Romero and the Governor of the extinct Department of Pan- 
ama, which was eventually transferred to Mr. McConnell, it nevertheless, 
in consideration of the work that the petitioner has done on the spot, 
denominated "Gandocan" in matters of agriculture in a large scale, in- 
vesting therein a large capital, the Goverrunent is wilHng to afford him 
all possible protection within its sphere of action. 

In consequence, the Government resolves: 

To request the Secretary of Government and Foreign Affairs to address 
the Government of Costa Rica and to demand from said Government 
that, provisionally and pending the settlement of the precise boundaries 
between the two RepubUcs, no impediment be offered by the authorities 
of the Government of Costa Rica to Mr. H. L. McConnell in the work 
in which he is now engaged in the place denominated "Gandocan." 

To be registered and communicated. 

By the President of the Republic. 

The Secretary of Public Works, 
(Signed) Manuel Quintero. 
"C." 
Authentic copy. 

The Sub-Secretary, 

(Signed) Ladislao Sosa. 
(Seal) 



[Translation.] 
Republic of Panama. Second Session. 

Executive National Power, 
Ministry of Government. Bureau of Foreign Relations, 

Panama, September 22nd, 1904. 
Mr. H. L. McConnell, 
Present : 
For your information and final consequence, I remit you herewith the 



14 

resolution which on this date was dictated by this office. Such reads as 
follows : 

"Republic of Panama: Executive National Power. — Office of the 
Secretary of Foreign Relations. — No. 42. — Panama, Sept. 22nd, 1904. — 
The office of the Secretary of Public Works urges in resolution No. 33 of 
the 14th inst. that the Office of the Secretary of State and Foreign Re- 
lations demand of the Government of Costa Rica the discontinuance of 
interference with the work, which Mr. H. L. McConnell is carrying on at 
the place called 'Gadocan.' As the execution of the arbitrated decision 
limits between Panama and Costa Rica is being discussed at these 
moments, this Office does not consider it prudent at present to make 
the requested demand and be it so resolved. Inform the Secretary. 
Tomas Arias." Yours, etc., 

(Signed) Tomas Arias. 

NOTARIAL ACT DATED 16TH MAY, 1904, including Affidavits 
Preliminary to the Denouncements of Unoccupied Iands on 
THE SixoLA River.* 

Number Seventy-eight. At Bocas del Toro, Capital of the Pro\ince 
and Head of the Notary Circuit of the same name, before me, Adolfo 
Cervera, the Acting Notary Public of the said mentioned Circuit, on the 
sixteenth day of May, 1904, and the instrumental witnesses, Messrs. Fran- 
cisco Rodriguez C. and Mariano Mora Gutierrez, both of this neighborhood, 
persons of age, of good standing and of which there exists no legal im- 
pediment for them to act as aforementioned witnesses, there appeared 
Mr. Otto F. Dolder, a person of age and also of this neighborhood who 
I attest is known to me, and presents me a minute in which he solicits me 
to place in the records of the archives of this office under my charge the 
depositions made and legally recorded which assures the right of occupa- 
tion of certain uncultivated lands by Mr. Herbert L. McConnell in the 
region of the River Sixola. He also presented me the voucher given him 
by the Secretary of the Treasury verifying the payment of the fees due, 
according to law, for recording same. The minute copied testually says: 
"To the Notary Public of the Circuit, Present. In order that you should 
embody in your book of records of public instruments, of which you are 
in charge for this present year, I herewith at the solicitation of Mr, Herbert:'. 
L. McConnell present you the depositions taken in law, before the Mayor 
of this District, and in presence of the Recorder to affirm, his occupation 

* These proceedings were supposed to be based upon the Colombian Land Laws, infra p. 290. 



15 

with houses, tillages and permanent cultivations of certain uncultivated 
national lands which lie on both sides of the river Sixola,Ln this jurisdiction, 
extending from three miles from the mouth of said river towards the 
source of same; this procedure is made out on eleven sheets fully written. 
Kindly, Mr. Notary, add the necessary stipulations so that this procedure 
will have all its legal value." Bocas del Toro, ilay 16th. 1904. 0. F. 
Ddder. 

In Airtue of which, I the undersigned notarj- proceeded to embody this 
deed, so as to form part of the current records of public instruments: 
the deed is made out in foiu-teen sheets including this procedure and the 
voucher already mentioned. This instrument haAong been read to the 
party concerned, he foimd it correct, approved same and signed same 
before me and the ■fitnesses already mentioned, also each in the presence 
of the other and I, the Xotarj' Public who attests. 0. F. Bolder: Fran- 
cisco Rodriguez C: M. Mora. The Acting Notary Public, 

ADOLFO CER^T:RA. 

The voucher mentioned copied UteraUy says : 

"Republic of Panama. Pro%ince of Bocas del Toro, Office of the Pro- 
vincial Treasury, Voucher No. 101. Dr. Francisco has paid the sums of 
one dollar (SI. 00) for the right of haA"ing recorded certain procedures which 
verifies certain legal-binding depositions, asked by Mr. H. L. McCoimell 
as to possession and cultivation of certain uncultivated lands in Sixola. 
Bocas del Toro, May 16th, 1904 : The Secretary" of the Treasury, Benjamin 
Aguilero. (seal)." 

The procedures recorded UteraUy say : To the Mayor of the District : — 
I, Herbert L. McCormell, citizen of the United States of North America, 
here in business and of this neighborhood, -nith aU due respect petition 
you to appear before you, Messrs. FeUpe Robinson, C. RogUlo Pardo, 
Otto F. Bolder, Langley O'NeiU, and Ricardo R. Romero, aU residents 
of this District of Bocas del Toro, ProAince of Colon, in the Department 
of Panama, pubUcly known as persons of good standing and consequently 
qualified under aU considerations to act as mtnesses, and have them render 
oath and aU other judicial compulsion established by law, before you, and 
in the presence of the Recorder to-day represented by the Deputy of the 
MunicipaUty, their depositions on the foUowing points which I express 
below. 

- 1st. As to my cognizance and if the law embraces them -nith me in any 
form. 

2nd. To have them aU state to a certainty if they know the lands that 
lie on both sides of the river Sixola, in the jmisdiction, from three miles 



16 

up from the mouth of said river, up to five mUes of its course, and an 
equal distance to the depth of the forest on each side of the river, thereby 
forming on both sides a perfect square. 

3rd. To state the same form, if they know that said lands have been 
and still are uncultivated; that they have never been known to have 
had private o'miership and consequently belong to the Nation. 

4th. To also declare to a certainty and because it has been affirmed, 
that the land in reference has not been, nor is destined by the Nation to 
any determined public use, such as roads, new villages, maritime or river 
ports, arsenals, docks or for any other usages which are enumerated in 
Ai'ticle 918 of the Fiscal Code of the Republic. 

5th. To state in the same way if they are not assured that the land 
in question is not near any railway, or of any lines surveyed or in project, 
to a distance of two or more leagues from its border. To declare if they 
affirm that in the land mentioned there is not known to exist (neither in 
the lands contiguous to it) any known coal mines, rock salt, precious stones, 
salt foundations nor any other substance which by law the Nation has a 
right to reserve. 

The testimonies having admitted in the form indicated, I request you 
in the manner established by the Judicial Code to certify the aptitude of 
the witnesses to declare. All this being accomplished I ask you to have 
the originals returned to me to use them in the way that I may consider 
most advantageous to my interests. Bocas del Toro, May 19th, 1903. 

H. L. McCoNNELL, by R. K. Warren, Attorney. 

Received to-day, the nineteenth day of May, 1903, and delivered at the 
Mayor's office. The secretary, Gmo. G. de Paredes. 

Municipal Jurisdiction of the District, Bocas del Toro, May 18th, 1903. 
As solicited in the previous memorial, summon the witnesses therein men- 
tioned, so that in accordance with the interrogatory contained in it, they 
shall render their declarations, previously compljdng with all the legal 
formalities, in the presence of the Recorder. Notify the parties. The 
Mayor, Rogelio Fabrega; The Secretary Gmo. G. de Paredes; on this 
same date I notified the Municipal Deputy. 

In Bocas del Toro, on the twenty-fifth day of May, 1903, there appeared 
in the office of this Municipal Jurisdiction Mr. Roberto R. Romero, with 
the object of rendering a declaration. The Mayor admitted him under 
oath, duly rendered, after reading to him the articles in the Penal Code 



IT 

relating to the matter in hand, in reference to false witnesses and perjurers, 
and he promised to tell the truth as far as his knowledge, to any questions 
asked him. As to his identification, he said his name is the above men- 
tioned; that he is of age, married, a lawyer, a native of the Department 
of Panama and of this neighborhood. The memorial at the heading of 
these procedures, signed by Mr. H. L. McConnell was submitted to him, 
and as to the first point of the interrogatory said : that he knows McConnell, 
and is not included with him in the general forms of the law. To the 
second he answered that he knows the lands lying on both borders of the 
river Sixola, in the jurisdiction of this District from three miles of the 
mouth of the river, up to five miles of its course; and some distance to the 
depths of the forest on either side, thereby forming a perfect square on 
both borders; to the third he said that he also knows that said lands have 
been and are reputed as uncultivated ; that the last time he saw them they 
were not in cultivation; that he has never known of any private owner- 
ship; in virtue of which, he asserts they are the property of the Nation; 
to the fourth he answered that he affirms as certain that the said land has 
not been nor is destined by the Nation for any possible use, such as roads, 
new villages, maritime or river ports, arsenals or docks or for any other 
usages that are expressed in Article 918 of the Fiscal Code of the Republic. 
This he affirms from the fact that when any official measures of this nature 
are acted upon, it becomes publicly known and he has never heard, nor 
has he any knowledge that any disposition has been made to turn the land 
in question to any public use, to which the question refers. To the fifth 
he answered, he is assured that the land in question has not been destined 
for any particular end nor is it near any railroad or any line in project 
of construction or to be surveyed, ^vith the exception of the one referred 
to in the contract in which Mr. McConnell binds himself with the Govern- 
ment to construct a tramway, which line the witness has no knowledge 
if it is to remain at the distance which is mentioned in the question. To 
the sixth and last he states that he knows and affirms that within the 
mentioned land there exists no coal mines nor of any other kind. There 
being no further answers required from the expositor this act is considered 
ended, which having been read to the expositor, he affirms and ratifies 
same and for evidence he places his signature next to that of the Mayor 
in the presence of the undersigned Secretary. It is placed in evidence 
that this exposition was in conformity with Article 633 of the Judicial 
Code. 

The Mayor, Reglio Fabrega; The Declarer, R. R. Romero; 

The Municipal Deputy, Serafin Jovano; the Secretary 

Gmo. G. de Paredes. 



18 . 

In Bocas del Toro on the 13th day of June, 1903, there appeared in the 
office of this Jurisdiction, Mr. Otto F. Bolder with the object of making a 
declaration. Having given his oath in due form in the presence of the 
Mayor and the Municipal Deputy and fully understanding the gravity 
of same by the creed of the religion he professes, and after submitting to 
him the articles in the Penal Code which refer to false witnesses and per- 
jurers, he stated that he would state nothing but the truth as far as his 
knowledge, to any questions required of him. As to his personal identifi- 
cation he says his name is the above mentioned, he is of age, a native of 
Smtzerland, a bachelor, a farmer in this neighborhood, and professes the 
Protestant religion. Being asked, " Do you know Mr. H. L. McConnell, and 
are you included with him in the general forms of the law?" he answered, 
"Yes, I know Mr. Herbert L. McConnell and I am not included with 
him in the general forms of the law." Being questioned as to the second 
point of the interrogatory in the preceding memorial subscribed by Mr. 
Herbert L. McConnell, he says that in certainty he knows the lands lying 
on both borders of the Sixola River in this District from the distance of 
three miles of the mouth of the river, up to five miles of its course, and the 
same distance in the depths of the forest on both sides of the river, form- 
ing a perfect square. To the third point he says that he knows and affirms 
that said land is uncultivated, that it is not now in cultivation, that he 
knows of no private ownership of same and in consequence it belongs to 
the Nation. To the fourth question, that he has no knowledge whatso- 
ever that the land in reference has been alloted to pubUc use. To the fifth 
point, that he knows and affirms that the land in question is near only to 
the railroad project by the petitioner himself and that at the present 
time there are not any roads or ports in the immediate vicinity. To the 
sixth and last point he states that there is not in existence in the zone of 
the land solicited, any salt mines, nor that of any other kind. There being 
no further information required from the expositor the act is considered 
ended, the contents of which having been submitted to him he affirms and 
ratifies same for evidence and signs. The Mayor certifies that this dep- 
osition was made in accordance with the stipulations contained in the 
article 633 of the Judicial Code. 

The Mayor, Alberto G. de Paredes; the Declarer, Otto F. 
Dolder; the Municipal Deputy, Serafin Jo vane; the Sec- 
retary, Rogelio Fabrega. 

In Bocas del Toro, on the 13th day of June, 1903, there appeared in the 



19 

office of this ^Municipal Jurisdiction, ilr. Langley O'Xeill with the object of 
rendering a declaration. The Mayor in the presence of the Municipal 
Deputy, required him to give his oath, which was done in due fonn by the 
expositor, after submitting to him the clauses of the Penal Code which re- 
late to the matter in hand as to perjury and giving false evidence. And he 
promised to state the truth only as far as his knowledge, to any questions 
made to him. Being asked as to his personal identity, he said that the same 
above given is his own, that he is of age, a bachelor, farmer, and a native 
and neighbor of this ProAdncial Capital. Asked as to the tenor of the 
interrogatory put forth by Mr. H. L. McConnell at the beginning of these 
procedures, he answers as to the first point, that he knows who presents it 
and is not included -with him in the general forms of the law. To the 
second, that he knows the land hing on both borders of the Sixola River 
in this District, from the distance of three miles from the mouth of the river, 
up to five nules of its course, and the same distance to the depths of the 
forest on both sides of the river, forming a perfect square. To the third 
point he says that the land is uncultivated ; the part of land mentioned is 
not tUlaged as the planters that may be encountered around are located 
more than five miles from the mouth of the river, and he has never known 
of any other right of possession outside of the Government or Nation. 
To the fourth point he states that he has no knowledge that said lands 
have ever been destined for pubhc use such as roads, new \Tllages, mari- 
time and river ports, arsenals or docks. To the fifth he says that he has 
no knowledge that these lands are near any railroad or any line in project 
of construction or smvey, within two or more leagues of its boimdaries. 
To the sixth and last point he says, "I have no knowledge that in the land 
in reference, or those contiguous to it, there exist coal mines, rock salt, 
precious stones, salt deposits or any other substances." There being noth- 
ing further to ask the expositor this act is considered at an end, and after 
haAing same submitted to him, he affirms and ratifies it, signing in evidence. 
The Mayor certifies that this declaration was made in accordance vnth the 
stipulations in Article 633 of the Judicial Code. 

The Mayor, Alberto G. de Paredes; The Declarer, Langley 

O'Neill; the Deputy, Serafin Jovane; The Secretary, 

Rogelio Fabrega. 

In Bocas del Toro on the 16th day of June, 1903, there appeared in the 
ofl&ce of this Municipal Jurisdiction, Mr. FeUpe Robinson Lopez, with the 
object of rendering a declaration. The Mayor in the presence of the Munici- 



20 

pai Deputy required him to give his oath, which was done in due form, 
after being informed of the Articles of the Penal Code, relating to perjury 
and false witnesses, he promised to state nothing but the truth, as far as 
his knowledge, to any answer required of him. As to his identity he said 
his name is the same as mentioned above : he is of age, married, freeholder, 
native and resident of this City. Being asked as to the preceding memorial 
which was submitted to him, subscribed by Mr. H. L. McConnell, he an- 
swered to point first, that he knows the party who presented same and that 
he is not included with him in the general forms of law. To the second 
he says that he knows to a certainty the lands lying on both sides of the 
Sixola River in the Jurisdiction of this District, from the distance of three 
miles from the mouth of the river up to five miles of its course, and the 
same distance to the depths of the forest, on both sides of the river, forming 
a perfect square. To the third point he answered that this land is uncul- 
tivated; has never been under cultivation and has not known of any rights 
of ownership outside of the Nation. To the foui'th he says that he does not 
know nor can he affirm if said land has been destined by the Government 
for any public use, such as roads, creation of villages, maritime or river 
ports, arsenals, docks, or for any other purpose. To the fifth the land in 
question is not near any railroad or of anj^ line in project or survey, to a 
distance of two or more leagues from its limits. To the sixth and last point 
he said that he knows and can affirm that there exist coal mines within 
these lands, but has no knowledge of the existence of any other kind of 
mines of which the law gives the Nation the right of Eminent Domain. 
There being no fm'ther questions to be made to the witness, tliis act is 
closed, the contents of which having been submitted to him he affirms and 
ratifies same, and for evidence places his signature herein, next to the 
Mayor, and jointly with the Deputy, in the presence of the undersigned 
Secretary. The Mayor certifies that this deposition was made according 
to the stipulations contained in Article 633 of the Judicial Code. 

The May or, Albert G.de Paredes; the Declarer, Fehpe R.Lopez; 
the Mimicipal Deputy, Serafin Jovane; the Secretary, 
Rogelio Fabrega. 

In Bocas del Toro on the 16th of June, 1903, appeared in the office of 
this Municipal Jurisdiction, Mr. Rogelio Pardo, with the object of ren- 
dering a declaration. The Mayor, in the presence of the Municipal Deputy, 
required him to give his oath, previously submitting to him for his guidance 
the articles in the Penal Code which relate to the matter in hand, as to 



21 

perjury and false evidence. He said he would tell nothing but the truth, 
as far as his knowledge in reference to any questions put to him. Asked 
&s to his identity he replied that the name above given is his own, that 
he is of age, married, native of the Department of Bolivar, property holder 
and of this neighborhood. Being asked in conformity with the inter- 
rogatory contained in the memorial placed at the beginning of these pro- 
cedures and subscribed by Mr. H. L. McConnell, he replied on the first 
point: "I know Mr. H. L. McConnell and am not included with him in 
the general forms of the law." To the second point: "I know to a cer- 
tainty the lands that lie on either side of the Sixola River, in this District, 
from the distance of three miles from the mouth of the river, up to five 
miles of its course, and the same distance to the depths of the forest on 
both sides of the river, and on each side forming a square." To the third 
point he said: "The land to which I refer is uncultivated and as such I 
have always known it, but I have heard that there now exist near the 
banks of the Sixola River a number of small plantations." To the fourth 
he replied: "I have no knowledge, nor do I affirai on this point, as to the 
Nation destinating these lands to any public use such as roads, maritime 
and river ports, arsenals or docks." To the fifth he says: "The land in 
question is not near any railroad, nor any line in project or survey within 
two or more leagues from its Umits." To the sixth and last point he 
replied: "Yes, I have heard said that in the lands alluded to there exist 
coal mines, and I have been shown samples of same, which I have been 
assured came from these mines. As to the existence of any other kind of 
mines, which by law the Nation has a right to reserve, I know absolutely 
nothing." There being nothing fvirther to ask the expositor this incident 
is closed, and after having repeated same to him he affirms and ratifies 
it and signs for evidence. The Mayor certifies that this declaration was 
made in accordance with the stipulations contained in Article 633 of the 
Judicial Code. 

The Mayor, Alberto G. de Paredes; the Declarer, RogeUo 
Pardo; the Municipal Deputy, Serafin Jovane; the Sec- 
retary, Rogelio Fabrega. 

Office of this Municipal Jm'isdiction, Bocas del Toro, June sixteenth, 
nineteen hundred and three. 

The foregoing procedures having been declared closed, notify party 
concerned and return him the originals. 
The Mayor, Alberto G. de Paredes; the Secretary, Rogelio Fabrega. 



22 

On this same date I notified Mr. H. L. McConnell of the decree above 
mentioned. — " Fabrega." 

Comparing all the foregoing with the originals that from the body of 
this writ, recorded under number 78, I find it to be a true and faithful copy 
of all of them, and I, the undersigned Notary so attest, and issue this first 
Code written on twelve sheets, for the use of the party concerned, and 
signed same on the 16th day of May, 1904. 

The Acting Notary Pvblic, 

(signed) Adolfo Cerveha. 



23 



CHAPTER 4. 

Showing the formation of the American Banana Company and the transf^ 
of McConnell's plantations and the Romero concession to it. 

PROSPECTUS OF THE AMERICAN BANANA COMPANY. 

(4th February, 1904.) 

The capital stock of the corporation is to be seven hundred and fifty 
thousand dollars ($750,000), di^•ided in shares of the face value of one 
hundred dollars (SI 00) each. 

One-third of the stock of said company will be issued in paj-ment of 
the rights in the lands, tramwa}^ route and port situation heretofore ac- 
quired with a view to the organization of the company. 

i 
Properties. 

The lands referred to in the foregoing paragraph are situated on the 
Sixaolar River, in the Republic of Panama, between Bocas del Toro, Pan- 
ama, and Port Limon, Costa Rica. There is no land superior and but 
little equal to that on the Sixaloa River for growing bananas, while the 
cUmatic conditions there are more favorable than to most locaUties, there 
being a great deal of rain and sun, which are essential for the successful 
growing of bananas. 

While it is only now proposed to plant only about 3,000 manzanas 
(a manzana is Httle more than two acres), there is practical!}^ no limit 
to the extent of rich banana lands in this district. It is roughlj' esti- 
mated b}' an engineer who has sun'eyed the route for a railroad to con- 
nect the Sixaola River and the lands situated thereon T^ith Gadocan 
Bay that there are 80,000 to 100,000 manzanas of fine banana lands in 
that district. Gadocan Bay, where an inside protected harbor is to be 
constructed, is situated about three miles north-west of the Sixaola River. 
The fruit will be transported by the railroad to the harbor, where it Tsill 
be transferred dh'ectly from the cars to the vessels. 

The greatest advantage in this situation is the fine shipping faciUties 
afforded by the harbor and wharf facihties and because of the rich lands 
which lie so accessible to the port. 



24 



Expenditures. 

The planting of the 3,000 manzanas of land, which work has now been 
under way for more than six months, vAVL cost, including necessary build- 
ings, approximately $100,000; the twenty-five to thirty miles of rail- 
road, including equipment necessary for the handling of the fruit, will 
cost not exceeding $150,000; and the harbor improvements will, accord- 
ing to the estimates of Col. A. F. Wrotnowski and Mr. E. L. Corthell, 
cost not more than $200,000; the remaining $50,000 of subscriptions will 
be used as a working fund. 

Productions and Profits. 

It is variously estimated that such lands as those on the Sixaola River 
will produce from twenty-five to sixty bunches per manzana monthly. 
It is, we think, safe to estimate the production at about twenty-five whole 
bunches. By "whole" is meant nine-hand bunches or the equivalent. 
On that basis the monthly production of such lands would be 75,00(} 
bunches, or 900,000 per annum. 

During the last fiscal year of the Camors-McCoimeU Company, ended 
September 30, 1903, that Company's importations of bananas from Bocas 
del Toro showed an average net profit above all expenses of 9.98 cents 
per count bunch, and that in the face of very expensive competition. 
The previous year the average profit per count bunch was 25.60 cents, 
or an average for the two yeai's of 17.89 cents. That company's profits 
for the last fiscal year of twelve months amounted to 100 per cent, on its 
capital of $80,000 and 200 per cent, the previous fiscal year of thirteen 
months. Its profits for the first quarter of the present year amount 
to $54,000, or at the rate of 250 per cent, per annum. The increased 
profits this year were, however, due largely, if not altogether, to the scar- 
city of fruit in Jamaica. 

Fruit grown on the Sixaola River lands will, judging by that produced 
in the Changiiinola district about ten miles away, where the class of land 
is practically the same, weigh about 15 per cent, more than that imported 
by the Camors-McConnell Company, or, say, eight or ten pounds more 
per count bunch. As the average price per hundred (bananas are now 
sold per hundred-weight) is about $1.50, fruit grown in the Sixaola dis- 
trict should bring twelve to fifteen cents more per count bunch. 

On account of the superior shipping facilities, much less handling of 



25 

the fruit will be required than at Bocas, where it is first handled either 
by rail or less convenient facilities and then transferred to lighters and 
towed alongside the ships. The fruit will, therefore, be in better condi- 
tion, hence will command a higher price, say ten to fifteen cents per hun- 
dred, that being the usual difference between Limon and Bocas fruit. 
The Limon fruit is handled altogether by rail, as the Sixaola will be. The 
increased value of the Sixaola over Bocas will for that reason amount 
to fully six to nine cents per count bunch, as that fruit will average fully 
sixty pounds per bunch in weight. It will, we are confident, weigh nearer 
sixty-five pounds than sixty pounds. Furthermore, on account of the 
improved handhng faciUties, it is conservatively estimated that there 
will be a saving of ten cents per bunch in the cost aboard ship. 

The importatioii of Bocas bananas by the Camors-McConnell Company 
for the past two fiscal years cost within a fraction of thirty-five cents 
gold per bunch on board steamers at the fruit port, considerable of which 
cost during the past fiscal year one dollar silver (forty cents gold), while 
a competing line was in operation, the normal price being sixty cents 
silver. It is confidently expected that the Sixaola fruit will be deHvered 
aboard vessels at a cost of twenty-five cents gold. Limon fruit, which 
has for years brought more in the markets than any other, costs on an 
average of fifty cents aboard vessels, and we believe that the Sixaola 
fruit will be heavier and superior in carrying quahties, and for that rea- 
son should bring more money. 

According to these estimates, it is reasonable to expect that, under 
similar general business conditions as those existing during the past two 
fiscal years of the Camors-McConnell Company, fruit from the Sixaola 
district will show a net profit of at least 45.89 cents per count bunch, 
and, should the annual shipments amount to 900,000 count bunches, 
the total profits on that basis will be $414,010. 

In arriving at the profit per count bunch, it will be observed that the 
lowest estimates have been considered in every instance, nor has the ex- 
pensive competition that the Camors-McConnell Company contended with 
its last fiscal year been taken into consideration, though its net profit 
per count bunch was only 9.98 cents that year as against 25.60 cents 
the previous year. 

The business can be increased to almost any extent and that with- 
out the necessity of any further expenditures on the harbor unless for 
additional wharves, which will cost but Uttle. These figures will doubt- 
less appear extravagant to any one not familiar with the possibiHties 



26 

of the banana business, but they will bear investigation. The general 
business conditions of this country have been favorable for the past two 
years, and large profits are of course due to some extent to that fact. 

Under the new conditions all elements of competition in securing car- 
goes will be eliminated, since all the fruit will either be grown by the com- 
pany or controlled by it tlirough its control of the shipping facilities. 

It will be the policy of the company to pay liberal dividends out of the 
earnings and at the same time extend its planting interests. 

H. L. McCornsTELL. 

Mobile, February 4th, 1904. 



CERTIFICATE OF INCORPORATION OF THE "AMERICAN 

BANANA COMPANY." 

We, the undersigned, desjring to become a body corporate under the 
name and for the purposes hereinafter set out, do make and sign this cer- 
tificate and declare: 

1st. That the name of the corporation shall be the "American Banana 
Company." 

2nd. The objects for which the corporation is formed are to plant, cul- 
tivate, export, and import, buy and sell, on its account and for others, 
fruit and other products to import, export, buy and sell on its account 
and for others, goods, wares and merchandise, and other personal property 
of every kind, and to charter, own, manage and operate steamboats, 
steamships and other water crafts, to construct, buy, own and operate 
railroads for the transportation of its own products and the product of 
others; to construct, improve and own piers, docks and similar terminal 
facihties and to manage, control and use the same, and to furnish the use 
thereof to others for a reward, and to do all things incidental to the several 
objects hereinabove set out. 

3rd. The principal office of said corporation shall be in the City of Mobile 
in the state of Alabama. 

4th. The amount of the total authorized capital stock shall be seven 
hundred and fiftj'' thousand dollars, divided into seven thousand five hun- 
dred shares of the face value of one hundred dolla,rs each. 

The amount of the capital stock with which it will begin business will be 
one hundred and eighty-nine thousand, five hundred dollars ($189,500.00). 

5th. F. C. Horton, the Secretary and Treasurer of the corporation, is 



27 



hereby designated as the officer to receiA'e subscriptions to the capital stock 
of the company, and his post-office address is Mobile, Alabama. 

6th. The names and post-office addresses of the incorporators and the 
number of shares subscribed for bv each are as follows : — 



Name 
H. L. McConneU 
P. J. Lyons 
Gregor}- L. Smith 
Phil. L. Muscat, Agent 
Robert Hunter 
W. L. Murdoch 
J. F. McGoT\in 
John M. CartwTight 
Henry Piser 
Harr}- T. Smith 
Lee .J. Zimmem 
Frank P. Da^is 
G. Heustis Fonde 
AY. M. Cosby 
Muscatt (fc Lott 
Joseph Gee. Agent 
B. Daves. Agent 
W. M. Marshall 
E. F. Ladd 
J. M. Ladd, Jr. 
Henry C. MacEwan 
Louis Donald 



Address 
Mobile, Alabama 
Mobile. Alabama 
ilobile. Alabama 
Mobile, Alabama 
Mobile, Alabama 
Birmingham. Alabama 
Mobile. Alabama 
Birmingham, Alabama 
Mobile, -Alabama 
Mobile. Alabama 
Mobile. Alabama 
Mobile. Alabama 
Mobile, Alabama 
Birmingham. Alabama 
Mobile. Alabama 
Mobile, Alabama 
Mobile, .\labama 
Mobile. Alabama 
Mobile, -Alabama 
Mobile. Alabama 
Mobile, -Alabama 
Mobile, -Alabama 



Amt. of 

Subscription 

S70.000.00 

40.000.00 

5,000.00 

1.000.00 

5.000.00 

5.000.00 

20.000.00 

5.000.00 

5.000.00 

2,500.00 

1.000.00 

5.000.00 

2.000.00 

7,500.00 

5.000.00 

500.00 

500.00 

2,000.00 

3.500.00 

2.000.00 

1,500.00 

500.00 



The names and post-office addresses of the directors and officers chosen 
for the first year are as follows: H. L. McConnell, President of the corpora- 
tion, whose post-office address is Mobile, .Alabama; P. J. Lyons, Vice- 
President of the corporation, whose post-office address is Mobile, -Alabama; 
F. C. Horton, Secretar}- and Treasurer of the corporation, whose post-office 
address is Mobile, -Alabama. 

The names of the directors are: Gregory L. Smith, J. F. McGowin, P. J. 
Lyons, Robert Hunter, F. P. DaA-is, Hemy Piser, Phil. L. Muscat, H. L. 
McConnell, whose post-office addresses are Mobile, -Alabama, and W. M. 
Cosby, Zach. L. Xabers, W. L. Murdoch, whose post-office addresses are 
Birmingham, -Alabama. 

7th. The duration of the corporation shall be without limitation. 

8th. The railroads that the corporation proposes to build will be in the 



28 

Republic of Panama and the termini thereof will be near the mouth of the 
Sixola River and a point in the interior near said river, but not yet deter- 
mined. The Mobile Bay, Mobile River, and the Gulf of Mexico are the 
streams within the District of Alabama through which the corporation 
proposes to navigate. The corporation will be engaged in foreign com- 
merce. 

9th. The works of improvements as hereinabove stated that the corpora- 
tion proposes to engage in will be situate in the Republic of Panama, and 
in the County of Mobile, State of Alabama. 

In witness whereof, we, the above-named incorporators, have here- 
unto set our hands this the 18th day of June, 1904. 

Pat J. Lyons. Robert Hunter. 

F. P. Davis. M. L. Murdoch. 
Henry C. MacEwan. Joseph Gee, Agent. 

G. Heustis Fonde. Henry Piser. 
Phil. L. Muscat, Agent. W. M. Cosby. 
Muscat & Lott. Edwin Warley, 
J. F. McGowiN. H. L. McConnell. 

B. Daves. Jno. M. Cartwright. 

Jno. M. Ladd, Jr. Gregory L. Smith. 

Harry T. Smith. Ernest F. Ladd. 

W. M. Marshall. Louis Donald. 
Lee J. ZiMMERN. 

State of Alabama ) 
County of Mobile f 

Personally appeared before me, F. C. Horton, and being sworn, deposes 
and says that he is the person authorized by the incorporators hereinabove 
named to receive the subscriptions to the capital stock of said corporation, 
and that thirty-seven thousand nine hundred dollars ($37,900.00) of the 
capital stock of said company has been paid in cash as follows : — 

Amt. of 

Names Subscription 

H. L. McConnell $14,000.00 

P. J. Lyons 8,000.00 

Gregory L. Smith 1,000.00 

Robert Hunter 1,000.00 

Phil. J. Muscat, Agent ; . 200.00 

W. L. Murdoch, Agent 1,000.00 



29 

Amt. of 

Names Subscription 

J. F. McGowin $4,000.00 

John M. Cartwright 1,000.00 

Henry Piser 1,000.00 

Harry T. Smith 500.00 

Lee J. Zimmern 200.00 

Frank P. Davis 1,000.00 

■G. Heustis Fonde 400.00 

W. M. Cosby '. 1,500.00 

Muscatt & Lott 1,000.00 

Joseph Gee, Agent 100.00 

B. Davis, Agent 100.00 

W. M. Marshall 400.00 

E. F. Ladd 700.00 

J. M. Ladd, Jr 400.00 

Henry C. MacEwan 300.00 

Loms Donald 100.00 

F. C. HORTON. 

Subscribed and sworn to before me this the 20th day of June, 1904. 

Robert H. McConnell, 
Notary Public, Mobile County, Alabama. 
(Notary Seal) 

I, Price WiUiams, Jr., Judge of the Probate Court of Mobile County, 
hereby certify that the foregoing certificate of incorporation compUes with 
the provisions of an act of the legislatvire entitled, "An act to confer and 
limit the powers of business corporations and to provide for their organiza- 
tion and regulation," approved October 2, 1903, and that the same has 
been registered in the book kept for the registration of such corporations, 
number 4, page 509-510-511-512. 

June 21st, 1904. Filed in office for record June 21, 1904. 

P. Williams, Jr., 
Judge. 

State of Alabama ) -r, ^ 

-. ^ } Probate Court. 

Mobile County ) 

I, Price Williams, Jr., Judge of the Probate Court in and for said State, 
hereby certify that the within and foregoing Six pages contain a full, true, 
and complete copy of the Certificate of Incorporation of the American 



80 

Banana Company, as the same appears of record in my office in Incor- 
poration Book No. 4, pages 509 to 512. 
Given under my hand and seal of office, this 17th day of October, 1904. 

Price Williams, Jr., 

Judge of Probate Mobile County ^ 
by H. 0. Haynie, Clerk. 

ASSIGNMENT from H. L. McConnell to the American Banana Com- 
pany. 

r24th June, 1904.) 

Whereas it was agreed By and between the promoters and original 
subscribers to the capital stock of the .\merican Banana Company and 
the undersigned H. L. McConnell, that the capital stock of the said Amer- 
ican Banana Company should be seven hundred and fifty thousand dol- 
lai-s ($750,000.00) of which five hundred thousand dollars (.$500,000.00) 
should be paid for in cash bj' the subscribers thereto and the remaining 
two hundred and fifty thousand dollars ($250,000.00) should be sub- 
scribed for by the said H. L. McConnell and paid for by his conveyance 
of the lands planted by him in the Republic of Panama on the east and 
west sides of the Sixola River, under and pursuant to his application 
filed with the Republic of Colombia prior to the formation of the Republic 
of Panama, and all of the rights accming or to accrue, to the said H. L. 
McConnell, or to his assigns under such application; also the port facilities 
on Gadocan Bay Front and the lands surrounded thereby now cleared and 
fenced and all of the railroad rights of way secured by the said PI. L. Mc- 
Connell by clearing the same including the costs and legal expenses incident 
to obtaining said concession and rights, not, however, including the ex- 
pense of clearing and planting said lands; provided, however, that the said 
H. L. McConneU shall not at any time receive, on account of his said 
subscription payable as aforesaid, more than such an amount of stock 
as shall be equal to fifty per cent. (50%) of the amount of the stock of 
the corporation then actually subscribed for and payable in money : Now, 
THEREFORE, in payment in full of the said subscription to two hundred 
and fiftj' thousand dollars ($250,000.00) of the capital stock of said cor- 
poration made by the said H. L. McConnell and payable as aforesaid and 
issuable from time to time in proportion to the cash stock subscriptions, 
I, the said H. L. McConneU, hereby bargain, seU and convey, transfer, 
set over and assign to the said American Banana Company all of my right, ■ 



31 

title and interest of every kind and description to the lands planted by 
me in the Repubhc of Panama, hing on the east and west sides of the 
Sixola River under the apphcation made as aforesaid, to the Republic 
of Colombia, and of all the rights that the said McConnell may have, 
or be entitled to obtaiu under the apphcation made by him to the Re- 
public of Colombia before the formation of the Repubhc of Panama and 
also all port facilities at Gadocan Bay Front and lauds surrounding the 
same now deared and fenced, together with the railroad right-of-way 
secured by me by cutting timber therefrom, and I, the said H. L. ^Ic- 
ConneU, do further agree and bind myself not to obtain or be interested 
in any concession or right of any kind that will or may conflict or inter- 
fere ^vith the rights or interests of the American Banana Company obtained 
or obtainable under the concessions and rights by this instrument vested 
in it and to execute in due form such other and further conveyances, 
transfers and assignments, and other instruments, and to do and per- 
form all such other acts that I may be required by the said American 
Banana Company to execute, do and perform to fully invest the said 
American Banana Company rath all of the rights and concessions which 
I, the said H. L. McConnell haA"e obtained as aforesaid, or which may 
arise out of or be appurtenant to said concession or rights, and I hereby 
further grant and convey to John M. Ladd, J. il. Marshall and Joseph 
Gee, as a committee constituted and appointed by the bj'-laws of the 
American Banana Company, and to their successors, the exclusive and 
irrevocable power to vote, for a period of five years from the organization 
of said company, all of the stock which may be issued to me in consid- 
eration of the sale, transfer and assignment hereby made, upon any and 
aU questions upon which said stock may be entitled to be voted. 

Ix wrrNT;ss whxeeof, I, the said H. L. McConnell, have hereunto 
set m.y hand and seal this the 2-lth day of June, a.d. 1901. 

(Signed) H. L. McCoxxell. (Seal) 



State of Axabajia, "I 
CorrxTT OF Mobile. J 

I, F. C. Horton, a Xotary Public, in and for said state and county, 
hereby certify that H, L. McConneU, whose name is signed to the fore- 
going transfer and assignment, and who is known to me, acknowledged 
before me this dav. that being informed of the contents of said transfer 



32 

and assignment, he executed the same voluntarily on the day the same 
bears date. 
Given under my hand this 24th day of June, a.d. 1904. 

(Signed) F. C. Horton, 

Notary Public, Mobile County, Alabama. 



INSTRUMENT OF TRANSFER from H. L. McConnell to the Ameri- 
can Banana Company. 

Number One Hundred and Eighty-four (184). 
(31st July, 1905.) 

In the City of Bocas del Toro at the office in and for the Notarial Cir- 
cuit of the ProAnnce of the same name in the RepubHc of Panama on the 
thirty-first day of the month of July in the year nineteen hundred and 
five, appeared personally before me, Adolfo Cervera, the Notary Pubhc 
in and for the said circuit and the witnesses, Messrs. Roberto EUot and 
Morris Charles Burke, men of responsible age, residence, of good char- 
acter and with no impediment before the law to be such, Doctor Francisco 
Rodriguez C. as the legal representative of Mr. Herbert L. McConnell 
and of Mr. Otto F. Dolder, as it is stated in the powers of attorney pre- 
sented to me, party of the first part and Mister Otto F. Dolder, party of the 
second part, manager of the American Banana Company, of whose 
representation there is a constancy in the archives of tliis office. They 
present to me a memorandum signed by both parties in the name of their 
constituents in order to cause the same to be executed as a Notarial deed. 
They also present to me the receipt of the Treasury as having paid the 
taxes for recording the same and the certificate of the same office stating 
that the property sold owes nothing for taxes. These last two mentioned 
documents are added to the body of this instrument so that they may 
be inscribed in every testimony which may be given out of this same one. 
The memorandum referred to hterally reads hke this: Mister Notary 
Public of the Circuit. I, Francisco Rodriguez Camacho, of responsible 
age, a lawyer and a resident of this city of Bocas del Toro, to you declare : 

First, I have the power of attorney of Mister Herbert L. McConnell as 
stated in the instrument executed by you on the twenty-first of July 
of this year under the number one hundred and seventy-five (175) to the 
effect of selling and transferring certain pieces of property in the terri- 
tory of this Repubhc to the American Banana Company. 



33 

Second. I am also the legal representative of Mister Otto F. Dolder 
as stated by instrument at your Notary on the twenty-first of July of this 
year, under the number one hundred and seventy-six (176) to the same 
effect of selhng and transferring certain pieces of property situated in this 
territory to the American Banana Company. 

Third. My constituents or Herbert L. McConnell and Otto F. Dolder 
possess and own conjointly the following pieces of real property: One 
banana plantation of about three thousand (3,000) manzanas * which 
they acquired for having forraed it themselves on uncultivated lands. 
This plantation is situated on both sides of the Sixola River from the 
4th mile, more or less, coming from the mouth of the river at the Carib- 
bean Sea and extends for a length of twenty-six (26) miles along the same 
river towards its source until reacliing the tliirtieth mile with a depth 
on both sides varying from two hundred meters where it is narrowest 
until one thousand meters where it is the widest. There are several 
wooden buildings ^^^th zinc roofs in this plantation and some materials 
for construction, a great deal of thatched houses for the laborers and 
employees, amounting in all, both kinds, to about forty buildings: ten 
head of cattle, ten head of pigs and several fowls. There are besides 
for the use and help of the said plantation the following floating vehicles 
a gasolene launch name "Sixaola," of thirty-six horse power, forty-five 
feet long by twelve wide and six feet depth; a gasolene launch name 
"Messenger" of eight horse power, thirty feet long, seven wide and five 
depth, three wooden lighters, one of them roof-covered which measures 
thirty-five feet long by twenty-four wide and the other two measure 
forty-five feet long by eighteen wide and thirtj'-five boats, canvas and 
smaller ones. There are also in the same plantation for the use and help 
of the same, several store-rooms with provisions (commissariats), furni- 
ture, tools, machinery, agricultural implements and tools of several kinds. 
My constituents possess also five iron cars. The above mentioned plan- 
tation is thus crossed through internally by the aforesaid river Sixaola 
and by the other sides is bound -ndth waste lands. In the area of land 
in which this jDlantation is thus located and in the adjacent lands to it, 
my constituents have acquired according to the existing laws, rights of 
dominion as first working colonists, ha\ang built up houses and cultivated 
lands and besides they have made improvements of great magnitude 
and consideration such like the drawing of plans, opening of roads, the 
building of ports, the planting and cultivation of several kinds of fruit- 

* A manzana is a little more than two acres. 



34 

trees, drainage of swamps, erection of bridges and causeways the making 
of fences and enclosures. Then pursuant, I, Francisco Rodriguez Cam- 
acho, a resident of tiiis city and exercising the aforesaid faculties to me 
conferred by my constituents as stated in the legal instruments presented 
to you and to be incorporated in this deed and following the instructions 
given to me by my constituents, do sell, deUver up and transfer really 
and forever, the plantation thus specified and described with all its ap- 
purtenances before mentioned of vehicles, buildings, roads, furniture, 
animals, machinery, tools, utensils, materials and improvements of every 
kind to the American Banana Company for the sum of twenty-five thou- 
sand dollars ($25,000.00) American gold wliich my constituents have re- 
ceived of the purchasing company to their entire satisfaction. I sell, 
deliver up and transfer in the same manner to the above mentioned com- 
pany and in the name of my constituents for the same sum or the price 
of twenty-five thousand dollars ($25,000.00) gold, all the rights that my 
constituents have acquired upon the adjacent lands, according to the 
existing laws of the Republic of Panama. I sell, deliver up and transfer 
besides, to the same company and for the same price, all the rights that 
my constituent Herbert L. McConnell has or may have in ^drtue of the 
cession that Mr. Ricardo Roman Romero made to him by notarial deed, 
number one hundred and seventeen (117) on the first day of May of the 
year nineteen hundred and three, of the contract number forty-four made 
the second of April nineteen hundred and three between the Government 
of the Department of Panama and the said Ricardo Roman Romero 
for the privilege or concession to build a steam tramway between the an- 
choring ground at Gandocan in the Atlantic shore of the Republic of 
Panama and the left side of the river Sixaola, and lastly, I grant and 
transfer to the purchasing company any other rights that my constit- 
uents have or may have proceeding from the cession and contract just 
spoken or by virtue of the works done on both sides of the river Sixaola 
and the port of Gandocan. 

The American Banana Company accepts any or all the terms of this 
sale, grant and transfer referred to in this memorandum with aU the ob- 
ligations proceeding from the contract for the building of a steam tram- 
way, the said contract to be fulfilled in all its conditions by the purchas- 
ing company as soon as he removed the accidental difficulties which have 
caused the suspense of the work by the contractors. 

In testimony of the said acceptance, the manager of the corporation 
"American Banana Company" in this City, Mister Otto F. Dolder, of 



35 

which faculty there is a constancy in the archives of this Notary, sign 
herein with me. Please, Mister Notary, execute in your Protocol of legal 
deeds of this current year, one in which it be stated all that which has 
been stated before and add the clauses requh-ed by law for its full valid- 
ity. Bocas del Toro, the 26th of July, 1905. 0. F. Colder: Francisco 
Rodriguez C. 

This instrument was read by me to both parties before the witnesses 
above mentioned who found it correct and approved the same, after 
having been well acquainted with its contents. They were advised of 
the duty to make register the first copy of this instrument delivered to 
them at the Record House in this city within sixth days from to-day 
for the full legal validity of the same, and not to cause any overcharges 
for the tax of recording the same. All who have intervened in the exe- 
cution of this instrument sign before me, a Notary Public, who attests it. 

Francisco Rodriguez C. 0. F. Bolder. 

Morris Charles Burke. R. Eliot. 

The Notary Public, Adolfo Cervera. 

^ Follows the copy of the Power of Attorney in favor of Francisco Rod- 
riguez C. by Otto F. Bolder, substituting the power of attorney given to 
him by Herbert L. McConnell. 

(No. 175 dated the 21st of July, 1905.) 

Then follows the copy of the Notarial deed number 175 of the 21st of 
July of 1905, power of attorney in favor of Dr. Francisco Rodriguez C 
by Otto F. Colder. 

Come next the receipt and the certificate of the Treasury, and the at- 
testing by the Notary, and lastly the certificate of the recorder stating 
that this instrument has been registered in the book No. One 2nd volume, 
at the pages 114-120 entry No. 97 in August the third of 1905. 

Translated from the Spanish by the Undersigned. 

Robert Uricoechea, 

Official Interpreter. 
Bocas del Toeo, the 7th August, 1905. 



86 



CHAPTER 5. 

Containing some of the legal proceedings in the United States District and 
Circuit Courts in Alabama and the injunctions issued against McConnell. 

(Opinion August 31st, 1905.) 
140 Federal Reporter 987, 

DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN 
DISTRICT OF ALABAMA. 



No. 238 
Camors-McConnell Company 

V. !- Bill in Equity. 

Herbert L. McConnell. 



Messrs. Howe, Spencer & Cocke, and R. H. & N. R. Clarke, for Com- 
plainants. 
Messrs. Gregory L. & H. T. Smith, for Defendant. 

On Motion for Preliminary Injunction. 

TouLMiN, District Judge. 

The averments as to the facts of this case, as set out in the bill of com- 
plaint, are substantially admitted by the Defendant, with the exception 
that he denies that the contract of January 27th, 1900 (Exhibit III. to 
the answer) was made upon the terms set out in the contract of December 
6th, 1899 (Exhibit A to the bill), or that it had any reference to the pro- 
visions of said last-named contract; and that the provisions of Article 5 
therein were for the use, benefit and protection of the complainant. And 
Defendant avers that, at the time the contract of December 8th, 1899, 
was made, it was understood that the United FiTiit Co. was the real party 
interested in said contract, and that the provisions of Article 5 therein 
were made for its benefit and protection. 

It does not appear from anything now before the Court that the United 
Fruit Co. has ever availed itself of the provisions of Article 5, referred to; 



37 

that any consideration therefor ever passed or was intended to pass from 
it to the defendant, or that said Company ever complained of the violation 
of said contract by the Defendant. The United Fruit Co. is not a party 
to this suit, but it appears that it is a stockholder of the Camors- 
McConncU Company. 

T think that, on the bill, answer and evidence, as now presented, there 
can be no doubt that the contract of December 8th, 1899, was made in 
contemplation of the formation of the corporation of Camors-McConnell 
Co., and of its adoption by such corporation when organized; that it was 
adopted by said corporation, and that the contract of January 27th, 1900, 
transferring the property, effects, business and good will of Camors- 
McConnell & Co., was made in pursuance of, and upon the terms set out 
in said contract of December Stli, 1899; and that the Camors-McConnell 
Co. has performed the obligations thereby assumed by it, and is entitled 
to all the benefits accruing under said contracts. 

But the Defendant contends that the real purpose of the transaction in 
question was to suppress existing competition between the business con- 
ducted by the co-partnership of Camors-McConnell & Co. and the United 
Fruit Co., and to combine said business with corporations and companies 
confederated together to monopolize and control the business of buying, 
importing and selling fruit throughout the United States, and that the 
contract sought to be enforced is, therefore, illegal and void. 

The Defendant further contends that the complainant and the United 
Fruit Co. are conducting their business in violation of the laws of the United 
States, and that at the time the contract involved in this suit was made 
and entered into it was for the purpose of aiding and facilitating the United 
Fruit Co. and the Camors-McConnell Co. and other companies in combina- 
tion with them, in conducting their business in violation of the laws of the 
United States; that said contract was made in restraint of trade and com- 
merce among the several states and with foreign nations, and for the pur- 
pose of forming and maintaining a combination in the form of a trust, and 
for that reason it is illegal and not enforceable. 

The covenant here sought to be enforced is that wherein the Defendant 
agreed that he would not "either individually or by or through a corpora- 
tion jointly or severally, directly or indirectly, engage in the growing or im- 
porting or selling of tropical fruits or any other business directly or in- 
directty in competition with the new corporation." Camors-McConnell 
Co. 

The test of the legality and validity of this covenant is whether the main 



38 

contract is legal. If the contract is illegal, affirmative relief against it will 
not be granted. No court will lend its assistance, in any way, towards- 
carrying out the terms of an illegal contract. Spring Co. v. Knowlton, 103- 
II. S. 49; McMullen v. Hoffman, 174 U. S. 639; Harriman v. Northern 
Securities Co., 197 U. S. 244. 

A contract may, in a variety of ways, affect interstate commerce and yet 
be entirely valid because the interference produced by the contract is not 
direct. The fact that trade and commerce might be indirectly affected is^ 
not sufficient. The effect must be direct and proximate. Hopkins v. 
U. S., 171 U. S. 578; U. S. v. E. C. Knight Co., 156 U. S. 1; Northern 
Securities Co. v. U. S., 193 U. S. 198. 

The indirect effect of the contract under consideration might be to en- 
hance the price of tropical fruit, but the contract itself would not directly 
or necessarily for that reason be in restraint of interstate trade or com- 
merce. While it might tend to restrain such trade the restraint would 
be an indirect result. 

In the sale of a going business or concern, with the good will attached,, 
and as ancillary and incident thereto, the seller enters into a covenant with 
the buyer that he would not compete with him in any way as to diminish 
the value of the property or business sold, although such covenant may 
be in partial restraint of trade, it should be upheld and enforced. Harrison 
V. Glucose Sugar Refining Co., 116 Fed. 307; Nat. Enameling & Stamping 
Co. V. Haberman, 120 Fed. 415. 

In U. S. V. Addyston P. & S. Co., 85 Fed. 281, the Court said: "Cove- 
nants in partial restraint of trade are generally upheld as vaUd when they 
are agreements by the seller of property or business not to compete with 
the buyer in such way as to derogate from the value of the property or 
business sold." 

An agreement, as incidental to a sale of property as a business, that the 
seller would not enter into a competing business, is valid, notwithstanding 
it is in restraint of trade to that extent. A. Booth & Co. v. Davis et al.,. 
127 Fed. 875; S. Jarvis Adams Co. v. Knapp, 121 Fed. 34; U. S. v. Addy- 
ston P. & S. Co., supra; same case, 175 U. S. 211. 

The sale and transfer by a person of his property and good will to another 
cannot be repudiated on the ground that the purchaser acquired the prop- 
erty for the purpose of obtaining a monopoly of the business, and in pur- 
suance of an illegal combination in restraint of trade. Metcalf v. Am. School 
Furniture Co., 122 Fed. 115. 

In Diamond Match Co. v. Roeher, 106 N. Y. 473 (60 Am. Rep. 464), the 



€otirt said : "We are not aware of any rule of law which makes the motive 
of the covenantee the test of the validity of such a contract, On the con- 
trary, we suppose a party may legally purchase the trade and business of 
a,nother for the very purpose of preventing competition, and the vahdity 
of the contract, if supported by a consideration, will depend upon its reason- 
ableness as between the parties." 

Connelly v. Union Sewer Pipe Co., 184 U. S. 547; Knapp v. Jarvis Adams 
€o., 135 Fed. 1Q08. 

In the case of an imlawful combination of the nature asserted here, the 
remedy is by well-recognized and direct proceedings. 

The fact, if it be a fact, that the complainant is one of an association 
or combination of corporations, which constitutes a monopoly, and that its 
general business is illegal, as one in restraint of trade, cannot be invoked 
■collaterally to affect in any manner its independent contract obligations 
or rights. Yarborough v. Avant, 66 Ala. 526; Ware v. Curry, 67 Ala. 274; 
Johnson v. Smith, 70 Ala. 108. 

It is held that one who voluntarily and knowingly deals with the parties 
so combined cannot on the one hand take the benefit of liis bargain, and on 
the other defend against the contract on the ground of illegality of the com- 
bination. Harri&on v. Glucose Sugar Refining Co., supra; Dennehy v. 
McNulta, 86 Fed. 825. 

On the case as now presented, and assuming that there was a combina- 
tion or agreement between the complainant and other corporations, which 
"was prohibited by law as being in restraint of trade, I think that the con- 
tract in controversy between complainant and defendant was collateral to 
the said unlawful agreement or combination. Moreover, I do not think 
that the direct or necessary operation of said contract tends to restrain in- 
terestate or international trade or commerce, or to create a monopoly 
therein. 

My opinion, therefore, is that there is nothing illegal in the considera- 
tion and performance of said contract, and that the defendant should not 
be permitted to repudiate it because the association or complainant with 
other corporations is illegal. 

But it is urged on the part of the defendant that, even if the contract in 
controversy was, as a separate and independent contract, a lawful one, it 
was a part of an unlawful scheme to monopolize interstate trade and com- 
merce in tropical fruit, and it thereby became unlawful. 

It is true there are some cases in which Courts have held that even the 
fact that a contract is one for the sale of property or of business and good 



40 

■nail has not saved its validity, if it was shown that it was onl}' a part of 
a plan to acquire all the property used in a business hy one management 
with a view to establishing a monopoly. It was held that in those cases the 
actual intent to monopolize must appear. It is not deemed enough that 
the mere tendency of the provisions of the contract should be to restrain 
competition. U. S. v. Addyston P. & S. Co., supra. 

I think it will be found that the cases referred to were direct proceedings 
against the alleged monopolies wherein it was sought to enjoin them. 
There are no provisions in the contract here sought to be enforced, which 
refer to the restrictions of trade or to the regulation of the importation, 
sale and prices of fruit, evidencing an intent to estabUsh a monopoly in 
such trade. 

In the case of Swift & Co. v. U. S., 196 U. S. 375, a bill was filed by the 
U.S. to enjoin the defendants' commission of alleged violations of the law "to 
protect trade and commerce against unlawful restraint and monopolies." 
It charged a combination of a dominant proportion of the dealers in fresh 
meats throughout the U. S. to do and not to do certain specified things, 
with the intent to restrain competition among themselves, and to monop- 
ohze the supply and distribution of fresh meats thi-oughout the U. S. The 
case was submitted on bill and demurrer thereto. The Court said it seemed 
to them " that this allegation of intent colored and applied to all the specific 
charges of the bill, and intended to allege successive elements of a single 
connected scheme." In the course of the opinion the Court further said: 
"The constituent elements are enough to give to the scheme a body. . . . 
Moreover, whatever we may think of them separately when we take them 
as distinct charges, they are sufhcient as elements of a scheme. It is sug- 
gested that the several a«ts charged are lawful and that intent can make 
no difference. But they are bound together as the parts of a single plan. 
The plan may make the parts unlawful. The statute gives this proceeding 
against combinations in restraint of commerce among the states and against 
attempts to monopoHze the same. Intent is almost essential to such com- 
bination and is essential to such an attempt. Where acts are not sufficient 
in themselves to produce a result which the law seeks to prevent — for in- 
stance, the monopoly, . . . an intent to bring it to pass is necessary in order 
to produce a dangerous probability that will happen. But when that in- 
tent and the consequent dangerous probabihty exist, the statute ... di- 
rects itself against the dangerous probability as well as against the cora-- 
pleted result. 

The charge is not of a single agreement, but a course of conduct intended 



41 

to be continued. Under the act, it is the dutj^ of the Court, when applied 
to, to stop the conduct. . . . The most innocent and constitutionally pro- 
tected of acts or commissions may be a step in a criminal plot, and if it 
is a step in a plot neither its innocence nor the constitution is sufficient 
to prevent the punishment of the plot by law. 196 U. S. 375. 

As I understand these expressions of the Court, they amount simply to 
a declaration that conduct agreed upon to effect an unlawful object may 
be unlawful, and that the Court, when applied to in a direct proceeding 
therefore, will stop such conduct by injunction, as well as punish, in proper 
criminal proceedings, the unlawful act when completed, notwithstanding 
it may have been accomplished by separate acts, ever so innocent in them- 
selves. Being steps in a criminal plot or scheme, bound together by a 
common intent, their innocence is not sufficient to prevent the punishment 
of the completed act. 

I do not think the decision in the Swdft case has any application to tliis 
proceedings. 

The Defendant further claims that the complainant has entered into a 
combination with various other importers of fruit for the purpose of ac- 
quiring a monopoly in the importation and sale of the same, and that the 
contract in question was to aid and facilitate that purpose, and he insists 
that the Court should for that reason refuse to enforce such contract; and 
he invokes the maxim that he who comes into a Court of equity must do 
so with clean hands. 

The combination referred to may be an unlawful one, but the proposi- 
tion that the defendant, while violating a contract made with the com- 
plainant, is entitled to defeat a suit brought to enforce such contract be- 
cause the complainant is carrying on its business in an unlawful manner 
as a monopoly seems to me to be unwarranted. If the complainant 
has brought suit against the Defendant for a breach of contract, or vio- 
lation of its alleged rights founded upon the combination, then it might 
be pertinent to inquire into the character of the combination, and ascer- 
tain whether the Court would enforce anj' rights growing out of it. Strait 
V. Harrow Co., 51 Fed. 819; Edison Electric Light Co. v. Sawyer Man 
Electric Co., 53 Fed. 598. 

Whenever it is necessary for the Plaintiff to prove an unlawful com- 
bination or agreement in order to recover, no recovery or reUef can be had. 
A contract connected with and growing out of an illegal act cannot be 
enforced. McMullen v. Hoffman, 69 Fed. 515. 

Such, in my opinion, is not the case at bar as now presented. 



42 

"The rule that one coming into Court of equity must come with clean 
hands is confined to the conduct of the party in the matter before the 
Court, and not to matters aliunde. Courts will not refuse redress to the 
suitor because his conduct in other matters not then before the Court 
may not be blameless. It is enough if the suitor shows he has acted justly, 
fairly and legally in the subject-matter of the suit." The inequity must 
have been in regard to the Defendant himself and must have been done 
in regard to the matter in litigation." Bonsack-Mach. Co. v. Smith, 70 
Fed. 386, and authorities therein cited; Liverpool & L. & G. Ins. Co. 
V. Chmie, 88 Fed. 160; Knapp v. S. Jarvis Adams Co., 135 Fed. 1008. 

The maxim of equity to wMch Defendant refers contemplates some 
fraud or misconduct on the part of complainant in regard to the trans- 
action which is the subject of controversy. "It must be evil practice 
or wrong conduct in the particular matter or transaction in respect to 
which judicial protection or redress is sought." Authorities, supra; 
1 Pom. Eq. Jur. 399. 

"It is well settled that the granting of a provisional injunction rests 
in the sound discretion of the trial court, and that it is not necessary that 
the Court should, before granting it, be satisfied from the evidence before 
it that the Plaintiff wll certainly prevail upon the final hearing of the 
cause. On the contrary, " a probable right and a probable danger that 
such right will be defeated, without the special interposition of the court, 
is all that need be shown as a basis for such an order." Sanitary Works 
V. California Reduction Co., 94 Fed. 693; Georgia v. Brailsford, 2 Dall. 
402; 1 High on Inj., 4. 

"If there is one thing more than another which is essential to the trade 
and commerce of this country, it is the inviolability of contracts delib- 
erately entered into; and to allow a person of mature age, and not im- 
posed upon, to enter into a contract, to obtain the benefit of it, and then 
to repudiate it and the obhgation which he has undertaken, is prima 
facie, at all events, contrary to the interests of any and every country." 

"In all cases" as that now before the Court, "Courts have uniformly 
enjoined the delinquent party from engaging in the business from which 
he has agreed to refrain, and from disclosing the secrets of the business 
which he has thus acquired." 

Harrison v. Glucose Sugar Refining Co., 116 Fed. 310, and authorities 
therein cited. 

I am of opinion that the complainant is entitled to the injunction re- 
straining H. L. McConnell from a breach of his contract with the com- 



43 

plainant as set out in the bill of complaint, and an injunction will be issued 
in accordance with the prayer of said bill, except as to so much thereof 
as prays that Defendant be enjoined from becoming or remaining a stock- 
holder of the American Banana Company, as to which an injunction is 
now denied. 

Let a decree be entered and a preliminary injunction issue in accord- 
ance with the foregoing opinion on complainant's giving bond, with se- 
curity to be approved by the clerk of the Court, in the sum of One Thou- 
sand Dollars, conditioned as required by law, and the rules of Court. 

140 Fed. Rep. 987. 

Filed 30 day of Octo., 1905. 
Charles H. Lednum, Clerk of the United States Circuit Court of Appeals. 

UNITED STATES CIRCUIT COURT OF APPEALS, FIFTH CIRCUIT. 

'I 



Herbert L. McConnell, 

Appellant, 

V. 

Camors-McConnell Company, 

Appellee. 



No. 1512. 



Appeal from the Circuit Court of the United States for the Southern District 
of Alabama. 

Before Pardee and Shelby, Circuit Judges, and Maxey, District Judge. 
Per Curiam-. 

Without examining this case now as to its merits, the Court has con- 
cluded that it is not advisable or proper to interfere with the discretion 
of the trial Court in the granting of the temporary injunction. 

Adhering to the construction we have heretofore given the act allow- 
ing appeals in such cases, we affirm the judgment of the Circuit Court. 
Lehman v. Graham, 135 Fed. 39. 
Railroad Co. v. Rosenhaum, 130 Fed. 110. 
Kerr v. New Orleans, 126 Fed. 920. 
Massie v. Buck. 128 Fed. 27. 



44 



Herbert L. McConnell, 

V- > No. 1512. 

Camors-McConnell Compani'. 



This cause came on to be heard on the transcript of the record from 
the Circuit Court of the United States for the Southern District of Ala- 
bama, and was argued by counsel. 

On Consideration "Wliereof, It is now here ordered, adjudged and de- 
creed by this court that the decree of the said Circuit Court in this cause 
be, and the same is hereby affirmed. 

It is further ordered, adjudged and decreed that the appellant, Her- 
bert L. McConnell, and the sureties on the appeal bond herein, H. P. 
Vass, Henry C. McEwan and H. Piser, be condemned to pay the costs 
of this cause in tliis court, for wliich execution may be issued out of said 
Circuit Court. 

Oct. 30, 1905. 

UNITED STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH 
CIRCUIT. 

I, Charles H. Lednum, Clerk of the United States Circuit Court of Ap- 
peals for the Fifth Circuit, do hereby certifj' that the foregoing 2 pages 
numbered from — to — , inclusive, contains a true copy of the opinion 
and decree of the court, in the case of Herbert L. McConnell, No. 1512 
versus Camors-McConnell as the same remains upon the files and records 
of said United States Circuit Court of Appeals. 

(Seal) In testimony whereof, I hereunto subscribe my name and afl&x 
the seal of said United States Circuit Court of Appeals, at the 
City of New Orleans, Louisiana, this 19th day of February, a.d. 
1906. 

Charles H. Lednum, 
Clerk of the United States Circuit Court 
of Appeals for the Fifth Circuit. 



45. 

No. 238. 



The Camors-McConnell Co. 



Herbert L. McCoxnell. 



United States Circuit Court, 
Eastern District of Louisiana. 

In Equity. 



The Deposition of John B. Camors, witness called on behalf of the 
complainant, taken before Henry J. Carter, Esq., Clerk of the United 
States Circuit Court, on the 18th day of January, 1906, at the office of 
said clerk, New Orleans, La., by consent, all formalities as to the mode 
of taking such deposition and the signature of the witnesses to same being 
waived. 



APPEAEAXCES. 
Mr. W-iLKER B. Spencer, Solicitor for com'plainant. 
Mr. Gregory L. Smith, Solicitor for defendant. 



John B. Cajiors, witness sworn and examined on behalf of complain- 
ant, testified as follows: — 

Direct Exaiwination. 

By Mr. Spencer: 

Q. Please state your full name, your age and your residence. A. 
My name is John B. Camors. I am in my sixty-ninth year, and I reside 
in New Orleans. 

Q. What is your business? A. Well, I am m. the commission busi- 
ness, — flour especially. 

Q. Were you ever, at any time, engaged as a member of a partner- 
ship in the importation from Central America and the sale ia the United 
States of bananas and other tropical fruits? A. Yes, sir. 

Q. Of what partnership or partnerships were you a member of that 
were engaged in such business at any time? A. First I was by myself, 
— ^J. B. Camors and Company; second, I went with Camors, McConnell 
and Company. 



46 

Q. When you were engaged in the banana and tropical fruit business 
under the name of Camors and Company, where did you operate in Cen- 
tral America? A. I operated a little everywhere, in Costa Rica, in 
Colombia and in Honduras. 

Q. What part of Colombia did you operate in? A. Well, Bocas- 
del Toro. 

Q. Which is now in Panama, I believe? A. Yes, sir. 

Q. When did you first engage in the tropical fruit business imder the 
name of Camors and Company? A. I could not tell exactly, but you 
know it has always been J. B. Camors and Company for the last forty- 
five years, and it became Camors and Company about ten years ago. 
■ Q. Subsequently, I understand, you engaged in that business tmder 
the firm name of Camors, McConnell and Company? A. Yes, sir. 

Q. Can you state who were the parties that constituted the firm of 
Camors, McConnell and Company, or that were interested in that firm?' 
A. Yes, sir, there was Kroesman, Braden and Company, Mr. H. L. Mc- 
Connell, the United Fruit Company, and us. 

Q. I mean in the Camors, McConnell and Company, the partnership? 
A. Well, that is it, Kroesman, Braden, McConnell, I, and the United 
Fruit Company. 

Q. Were the W^einbergers interested in the Camors, McCoimell and 
Company, Jacob, Louis and Charles? A. At the beginning they were,, 
but they sold out. 

Q. Now, did the United Fruit Company have any interest in the part- 
nership of Camors, McConnell and Company, before the organization of 
Camors-McConnell Company? A. No, sir. 

Q. Well, then, I merely want the names of the persons who composed 
the partnership of Camors, McConnell and Company? A. I do not 
recollect of any others. 

Q. Except that the United Fruit Company had no interest at that 
time? A. Had no interest. 

Q. Do you know whether or not Mr. Herbert L. McCoimell, prior ta 
the formation of the partnership of Camors, McConnell and Company, 
had been engaged in the banana and tropical fruit business? A. I 
think he had, but I do not recoUect, I could not say exactly because he 
was in Mobile, and I was in New Orleans. 

Q. Did you ever hear of the Bocas del Toro trading Company or some 
such concern of that name? A. No, sir. It might have been in exist- 
ence, but I do not recollect it. 



47- 

Q. How did you happen to form a partnership -nath Mr. McConnell 
to engage in the banana business? A. Well, he had some interest in 
Bocas himself at that time. 

Q. What was he doing down there, do you know? A. I don't know. 
He had some interest in Bocas at that time. We had some, and we joined 
together. 

Q. Don't you remember or recall whether Mr. McConnell was engaged 
in the fruit biisiness before you went in partnership with him? A. I 
think he was, but you know at the time this thing happened I was in 
Europe because we had an interest there in Port Limon, in Costa Rica, 
and we sold out that interest in Costa Rica, and we kept the Bocas del 
Toro and the Bocas del Toro interest, we went with Mr. McConnell. 

Q. Who made the arrangements that culminated in the formation 
of the partnership with j\ir. McConnell ? A. I think it was my son Victor . 

Q. After you went in partnership with Mr. McConnell, where was the 
firm of Camors, McConnell and Company to get the bananas and tropical 
fruit it imported into the United States? A. Get it in Bocas del Toro. 

Q. Through what ports in the United States did they import those 
bananas? A. Generally New Orleans and Mobile. 

Q. Did they ever, to your knowledge, import fruit through any other 
ports? -A. I think a couple of times they went to Baltimore and PhUa- 
•delphia. 

Q. Where did they sell the fruit which they imported into the United 
States? A. All over the United States. 

Q. Did they enjoy a good business? A. Yes, sir. 

Q. Were the people who were interested with you in the firm of Camors, 
McConnell and Company well kno^Ti in Central America? A. P&r- 
Jeclly, they had a good refutation. 

Q. Were any of them residents of Central America? A. Yes, sir, 
Kroesman and Braden. 

Q. Do you know whether Mr. McConnell was well known in Central 
America, in Bocas? A. He must hare been well known, he had been there 
several times. 

Q. He had been doing business there some time? A. Yes, sir, he 
was well known, sure. 

Q. What was the financial standing of the people that composed the 
firms of Camors, McConnell and Company? Were they men of large 
means or men of small means? A. Well, more than sufficient, much 
more than sufficient, large means. 



48 

Q. You are a man of considerable means? A. I have a little. 

Q. Don't be modest. I want you to state — I mean to say you are 
a man of considerable means? A. Yes, sir. 

Q. How about Kroesman, Braden and Company, are thej^ people 
of means? A. They are people of means, too, judging by the way they 
operate. 

Q. And the Weinbergers, were they people of means? A. I couldn't 
tell as much about them, but I think they were well off at that time. 

Q. And Mr. McConnell? A. Mr. McConnell also. He was the 
youngest of the crowd, I think. 

Q. I would ask you to state whether or not the Camors-McConnell 
Company had a good business? A. Yes, sir, ive had a very good busi- 
ness. 

Q. Wliat was the reputation of it for business integrity? A. First 
class. 

Q. Did you consider the firm of Camors, McConnell and Company 
had any good will connected with their business? A. Oh, yes. 

Q. In the bill of complaint in this case, Mr. Camors, it is alleged that 
the tangible assets of the firm of Camors, jMcConnell and Company was 
about $30,000, but that as a matter of fact that partnership received 
the smn of $50,000 for the sale of their property, business and good will 
to the Camors-McConnell Company. What was that extra $20,000 paid 
for? A. For the good will. 

Q. The contract which is sued on in this case, Mr. Camors, which 
was made between Mr. Andrew W. Preston the one part and the vari- 
ous parties interested in the firm of Camors, McConnell and Company 
on the other part, stipulated, among other things, that the Camors-Mc- 
ConneU Company, the corporation, should issue, in pa3fment of the busi- 
ness and good will which it purchased from the firm, certain shares of 
stock. Do you know whether those shares of stock were delivered to 
and received by the members of that firm, Camors, McConnell and Com- 
pany? A. Yes, sir. 

Q. Do you know whether the Camors-McConnell Company carried 
out all of the agreements which it was stipulated in here they should carry 
out, towards the members of the firm of Camors, McConneU and Company ? 
A. They were carried out until lately. 

Q. In what respect were they broken lately? A. Because it was 
agreed that all the good will was to belong to Camors-McConnell Company, 
and no one else, and — 



49 

Q. How was that broken? A. Mr. McConnell went out of the line. 

Q. In every other respect has that contract been complied with by 
the parties to it? A. Yes, sir. 

Q. For whose benefit was the stipulation made that you and Mr. Mc- 
Connell and the other parties interested in this partnership should not 
go into busuiess in competition with the Camors-McCoimell Company? 

Objection. Mr. Smith: Defendant objects to the question as calling 
for the opinion of the witness and not for the facts. 

A. It was for the benefit of the Camors-McConnell Company, for no 
one of us, vje all had to stay there. 

Q. "V^Tiy was this company that was formed called the Camors-Mc- 
Connell Company ? 

Objection. Mr. Smith: Defendant objects to that question as call- 
ing for the opinion of the witness as to the motives of the parties. 

A. Because our name was best known in the country amongst the people 
we xoere doing business with. 

Q. AVho was the first President of the Camors-McConnell Company? 
A. Mr. McConnell. 

Q. How long did he remain President? A. I could not tell, about 
a year and a half. 

Q. Do you know what Vjrought about that, why he ceased to be Presi- 
dent? A. Just because of his stepping out of the company. 

Q. How do you mean by his stepping out of the company? A. Going 
and doing what was agreed not to be done, going in the fruit business 
in another way. 

Q. Do you mean in competition with the Camors-McConnell Com- 
pany? A. Yes, sir. 

Q. He remained President then untU he broke his contract? A, 
Yes, sir. 

Q. Did Mr. McConnell have any knowledge or experience in the banana 
business that was valuable to the Camors-McConnell Company? A. Yes, 
sir. 

Q. Who was the active Manager of the business of the partnership 
of Camors, McConnell and Company? A. At that time, at first, it was 
Mr. McConnell himself. 

Q. You are now the present President of the Camors-McConnell Com- 
pany? A. Yes, sir. 

Q. And you were the senior member of the firm of Camors, McCon- 
nell and Company? A. Yes, sir. 



50 

Q. When did you first learn that Mr. McConnell was breaking his 
contract and going into business on his own account in competition with 
the Camors-McConnell Company? A. I could not teU exactly what 
time, but I found out as soon as he started to buy lands over there and 
plant bananas. 

Q. Did you remonstrate with him? A. I told him at that time I 
thought he had such a good thing with us I did not understand his idea 
of gomg out of us. 

Q. Did you object to liis breaking his contract? A. I told him he 
had no business to do that. I couldn't do anything else. 

Q. Were you aware of the fact, and did you consent to Mr. McCon- 
nell using the funds of the Camors-McComaell Company, its Ughters, its 
ships, for the piu-pose of conducting his private enterprise? A. I was 
not aivare of it, and, had I been aware of the fact, he ivoidd never have done 
it. 

Objection. Mr. Smith: Defendant objects and moves to ride out 
so much of the answer as states "if I had been aware of the fact, he 
would never have done it," because it is incompetent testimony, calling 
for the opinion and conclusion of the witness. 

Q. What do you mean by saying that, if you had been aware of it, 
he never would have done it? A. Because I would have stopped it; I 
would not have allowed it. 

Objection. Mh. Smith: Defendant objects to the answer upon the 
ground previously stated. 

Q. Did Mr. McConnell have anj' part in building up the business of 
Camors, McConnell and Company and its good will? A. Oh, yes. 

Q. Was he not the active Manager of that business? A. He was, at 
first. 

Q. I woidd ask you to state whether you know, generally, where the 
business that Mr. McConnell's new company, the American Banana Com- 
pany, will be carried on? A. Well, Mobile is what I imderstand. 

Q. Is the port of entry ? A. Yes, sir. 

Q. Now, where do they contemplate getting theii' bananas from? A. 
From exactly where we get ours. 

Q. Would the business conducted by the American Banana Company 
be in competition with the business of the Camors-McCormell Company? 
A. Why, of course it woxdd be, in direct competitmi. 

Q. Do you know how Mr. McConnell happened to become President of 
the Camors-McComiell Company? A. Well, he had stock and he was 



51 

occupied in that business, you know, he was active, doing that business 
actively, and he thought he would keep on. 

Q. Did he Avant to be President, do you know? A. I suppose he did 
because he got it. There was no objection to him. 

Q. I would ask you to state whether or not, so far as the extent of ter- 
ritory covered, places where the fruit is bought and the places where the 
fruit is sold, there is any difference between the business as formerly con- 
ducted by Camors, McCormell and Company and the business as it is now 
conducted? A. Is there any difference? 

Q. Is there any difference or is it the same business? A. Same busi- 
ness. 

Q. Do you know whether the Weinbergers had any business in Central- 
America? A. Yes sir. 

Q. Kroesman, Braden and Company you say resided in Central America ? 
A. They resided there. 

Q. And Mr. McConnell had been engaged in business in Central America ? 
A. Yes, sir, and was living in Mobile. 



-Camors-McConnell Co. | No. 238. 

V. }■ In 

Herbert L. McConnell. 



equity. 



Having examined and duly considered the pleadings and evidence in 
this cause I am of opinion that the complainants are entitled to relief, 
and that the defendant should be enjoined from remaining an officer of 
the American Banana Company, and from managing, directing or con- 
trolling its business or affairs, and otherwise from directly or indirectly 
engaging in the growing, importing or selling of tropical fruits in com- 
petition with complainants, as prayed for in their bill of complaint. A 
decree will be entered accordingly. 

On the motion to suppress certain portions of the testimony in the 
cause by both complainants and defendant, on the ground of irrelevancy 
and immateriality, and also as illegal and incompetent because hearsay, 
I make no special ruling, as, in my opinion, unnecessary. 

There is some eAddence which is irrelevant and immaterial to the issues 
made by the pleadings. This I have disregarded in the consideration 



52 

of the case except so far as it may have tended to affect the value of or 
weight to be given to the testimony of the particular witness to which 
the objection was made; and such evidence as I deemed incompetent 
because hearsay I did not consider at all in reaching a conclusion in the 
case. 

Harry T. Toulmin, 
Judge. 
Rendered and filed June 9, 1906. 

Richard Jones, 
Clerk. 



Camors-McConnell Company, 

Complamant, 

V. 

Herbert L. McConnell, 

Defendant. 



In United States Circuit Court 

for the Southern District of 

Alabama. 



In Equity. 



No. 238. 



Let the following decree be enrolled in this cause : 

This cause coming on to be heard for a final decree upon the pleadings 
and the proof, and the same having been argued by counsel for the re- 
spective parties and being duly considered and understood by the court, 
it is considered that the complainant is entitled to the rehef prayed by 
its amended bill of complaint in this cause. 

It is therefore adjudged and decreed that the defendant Herbert L. 
McConnell be and he is hereby perpetually restrained and enjoined from 
being an officer of the American Banana Company, and from managing, 
directing or controlling its affairs, and otherwise from directly or indi- 
rectly, either individually or by or through a corporation engaging in 
the growing of tropical fruits in competition with complainant, or in the 
importing or selling of tropical fruits anywhere in the United States in 
competition with complainant or in any other business in competition 
with complainant, the Camors-McC onnell Company, until after said Com- 
pany shall have ceased the active continuance and prosecution of the 
business of importing and selling such fruit, or until it has failed to show 
a profit for any calendar year after the year 1899. It is ordered that a 
writ of injunction issue to said defendant in accordance with this decree. 



53 

Let defendant McConnell pay all the costs which have accrued in this 
cause, for which let execution issue. 

Done in term time this 9th day of June, 1906. 

Harry T. Toulmin, 
Judge. 
Filed June 9, 1906, and entered on minutes, page 429. 

Richard Jones, 
Clerk. 

Certificate. 

I, Richard Jones, Clerk of the Court aforesaid, do hereby certify that 
the above is a true copy of the original decree on file and of record in my 
office as such clerk in the cause aforesaid. 

Witness my hand and seal at said Court this June 9, a.d. 1906. 

Richard Jones, 
Clerk. 
(Seal) 



PERPETUAL INJUNCTION. 

United States of America. 

CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN 

DISTRICT OF ALABAMA, FIFTH JUDICIAL DISTRICT 

CIRCUIT, AT MOBILE, ALABAMA. 

May Term, a.d. 1906. 

In Equity. No. 238. 
Camors-McConnell Company 

V. 

Herbert L. McConnell. 

The President of the United States, 

To said Herbert L. McConnell — Greeting: 

Whereas, at the present term of Court on the 9th day of June, a.d. 
1906, the Court made and entered a decree in the above cause granting to 
the complainant and said Camors-McConnell Company a perpetual injunc- 
tion against the defendant, said Herbert L. McConnell, and directed that 



54 

a writ of injunction issue accordingly, a true copy of said decree is hereto 
attached ; 

Now, therefore, pursuant to and in accordance with said decree, you, the 
said Herbert L. McConnell, are hereby perpetually restrained and enjoined 
from being an officer of the American Banana Compan}'^, and from manag- 
ing, directing or controlling its affairs, and othermse from directly or in- 
directly, either individually or by or through a corporation, engaging in 
the growing of tropical fruits in competition with complainant, or in the 
importing or selling of tropical fruits anywhere in the United States in 
competition with complainant, or in any other business in competition with 
complainant, the Camors-McConnell Company, until after said company 
shall have ceased the active continuance and prosecution of the business 
of importing and selling such fruits, or until it has failed to show a profit 
for any calendar year after the year of 1899. 

The marshal of the United States for this district or any of his deputies 
will execute this writ and make due return according to law. 

Witness Honorable Melville W. Fuller, Chief Justice of the United 
States and seal of said Circuit Court of the United States for the Southern 
District of Alabama, at the City of Mobile, Alabama, this the 9th day of 
June, A.D. 1906. 

(Seal) Richard Jones, 

Clerk U. S. Circuit Court for the 
Southern District of Alabama 



55 



CHAPTER 6. 

Containing a full account of the action of tlie State Department of the United 
States in behalf of McConnell and of the negotiations between him and 
the government of Costa Rica, including also a clear explanation of the 
" status quo " of the boundary between Costa Rica and Panama and 
of the legal principles and rights involved with regard to the disputed 
area. 

COMMUNICATIONS TO AND FROM THE STATE DEPARTMENT 
BEFORE McCONNELL'S FIRST MEMORIAL 

Mobile, Alabama, Sept. 24, 1903. 
Honorable John Hay, 

Secretary of State, Washington, D.C.: 

Dear Sir, — It has become necessary for me to appeal to you for assist- 
ance in an effort to overcome a complicated and very embarrassing situ- 
ation. Some months since I bought of a Colombian citizen a concession 
issued by the Government of Panama granting the exclusive right for 
building a steam tramway or railroad to connect the Sixola River with 
a point knovra as Gadocan. That territory through which this road 
would nm was until three years since claimed by both Colombia and Costa 
Rica, when the question was arbitrated by President Loubet of France, 
who in his decision fixed it as Colombian. Before the recent revolution 
in that country a joint commission was appointed by Colombia and Costa 
Rica to survey and fix accurately the boundary line, but on account of 
that revolution the commission never acted. It now appears that there 
is an understanding between Colombia and Costa Rica that the latter will 
hold jurisdiction over the territory in question until the boundary line is 
accurately fixed by a joint commission, but it seems that the Government 
of Panama was unaware of the existence of such an understanding be- 
tween the National Government and Costa Rica when the concession in 
question was issued and when transferred to me. 

Such a railroad as that contemplated would be of no value unless the 
river lands were improved, which I in good faith commenced at once, 
planting bananas largely which wiU commence producing fruit in the 
course of about twelve months, and, unless arrangements can be made 



56 

promptly for inaugurating and pushing to completion the work of im- 
proAdng the port of Gadocan and building the railroad, the fruit will be 
a loss, as there are now no facilities for shipping it. 

All the improvements that I propose and ^\ash to make at once in the 
way of planting and cultivating bananas, building the railroad, and mak- 
ing the port improvements, will require an expenditure of $400,000 
to $500,000 which would tend to increase very greatly trade relations 
both in exports and imports between the United States and Colombia. 

When in Panama on the 31st of August, Mr. Duran, who was then Gov- 
ernor, at my request cabled the Secretary of Foreign Affairs at Bogota, 
urging that a joint commission to fix the boundary line be appointed at 
once and directed to act promptly. He at the same time suggested that 
I request any friend whom I might have in Bogota to do what he could 
towards that end. When I suggested our Minister, he hesitated, but 
stated that that would be agreeable if he did not act in an official capac- 
ity. If you are kind enough to instruct him to interest himself in this 
matter, it must of course rest with you as to whether or not he act in an 
official capacity. 

Governor Duran told me during the inter-\aew referred to that Costa 
Rica had already sent a minister to Bogota, who was authorized to act 
in the matter; but, even should the joint commission be appointed at 
once and act promptly, I fear that a long period would intervene before 
Costa Rica's temporary jurisdiction is withdrawn, hence it has occurred 
to me that possibly on the request of Colombia that government would 
recognize the terms of this concession, thereby wholly overcoming the 
difficulty. 

"According to the terms of the concession, a copy of an Enghsh trans- 
lation of which I herewith enclose, plans and profile of the proposed rail- 
road were to be submitted within a given time, which was done, but the 
Governor declined to approve them unless subject to Costa Rica's tem- 
porary jurisdiction." 

Costa Rica has on several occasions interrupted temporarily my work 
of surveying and planting, and refused to allow a commissary built on the 
north bank of the Sixaola River or within the limits of its temporary 
jurisdiction, and I am forced to ship all supplies over the river bar, which 
is rough and dangerous both to life and property. Any shipments handled 
through Gadocan would be subject to confiscation, hence under such 
circimistances it is impossible to do anything towards the improvement 
of the port and the building of the railroad. The Colombian Govern- 



5T 

ment is, of course, responsible to me vmder the concession for any losses 
inflicted b}- the Costa-Rican Government, but I of course desire to work 
harmoniously mth that government. Furthennore, the pajmient for 
goods confiscated would not secm-e the end desired, namelj', that of 
building the road and opening the port for vessels. 

An expert engineer, whom I employed at considerable expense to sur- 
vey the port situation and direct its improvement, has just returned, and 
I am now very anxious to push the work ■ndth as little delay as possible. 

Regretting that it has been necessarj^ to ■write you at such length in 
order to place the matter before you fully, and trusting that you will 
find the time to give it attention and will advise me what action you have 
taken, I am, Yours respectfully, 

H. L. McCoxxELL. 

No. 38 

DEPAHTilEXT OF StaTE, 

Washington-, September 30, 190-3. 
Arthur M. Beaupre, Esquire, etc., etc., etc.. 
United States Minister at Bogota : 
Sir, — I enclose a copy of a letter from ilr. H. L. McConnell, in which he 
states that he owns a concession issued by the Governor of Panama, grant- 
ing the exclusive right for building a steam tramway or railroad to connect 
the Sixola River with Gadocan; that the concession lies in the territory 
decided by President Loubet to belong to Colombia; but that the boun- 
dary Hne has not been fixed by the commission; and that until so fixed 
Colombia pemiitted Costa Rica to administer the territory; and that the 
latter government is preventing him from operating his concession ac- 
cording to its teims. 

The Department does not know how far the acts of the Governor 
of Panama in relation to concessions of this character are subject to the 
control of the Colombian Government, but it cannot see how Mr. Mc- 
Connell can do anj^thing vmder the concession rmtil the boundar}^ line 
between Colombia and Costa Rica shall have been definitely fixed by a 
joint commission. 

You will, however, if you find the facts as stated, use your good ofiices in 
view of the American interests invoh-ed to facilitate the appointment and 
prompt action of a boundary commission. 
I am, etc. 

Alvey a. Adee, 
Acting Secretary. 



58 

No. 889. 

Washington, November 12, 1903. 

Meerv, Minister, San Jose : 

H. L. McConnell, American citizen, represents he owns concession from 
Governor of Panama, exclusive right to build railway connecting Sixola 
River and Gadocan in territory determined in 1900 by arbitrators ap- 
pointed by Colombia and Costa Rica to belong to Colombia, but boundary 
line not yet fixed by joint commission. Until fixed, Colombia permits 
Costa Rica administer territory. Costa Rica prevents McConnell contin- 
uing work begun pursuant to concession under threat confiscation of 
property. Present disturbed condition will probably delay fixing boun- 
dary. McConnell offers to give any reasonable bond to secure Costa Rica 
against damage from the continuance of the work. If facts as represented, 
use good offices with Costa Rica to permit the continuance of work. 

(s.) Hay. 

Cablegram received Sau Jose, Nov. 12th, 11.30 a.m. 



^ 



No. 



November 14, 1903. 



To THE Honorable John Hay, 

Secretary of State, Washington, D.C.: 
Sir, — I have the honor to acknowledge receipt of your cablegram dated 
12th inst., code translation of which I beg to forward herewith (Enclosure 
No. 1). I have made the inquiry instructed of the Acting Minister of 
Foreign Relations with the following result: The Government of Costa 
Rica, having been informed that Mr. H. L. McConnell was building a 
banana railroad from the Rio Sixaola to the httle port of Gadocan, sent 
an agent there to see what he was doing, and from this agent has received 
a report stating that Mr. McConnell has permission to build the road, 
granted by the Governor of the Department of Panama. The valley of 
the river Sixaola is being planted with bananas, and the use of the port is 
necessary in shipping them for the reason that the river bar is impassable 
from lack of sufficient depth of water. The territory through which the 
road is being constructed is awarded to Colombia by the Loubet decision, 
but Costa Rica claimed jurisdiction prior thereto. 'Wliile the Govern- 
ment of Costa Rica asserts, -with obvious propriety, that only the gov- 
ernment at Bogota could give a concession to build a railway through 
what was Colombian territory, it makes no assertion of invalidity because 



59 

it does not at this time claim jui'isdiction. It is disputed territory near 
the boundary line. The Acting Mininster of Foreign Relations assm-es 
me that his government has not demanded that the work be stopped, 
neither has it given permission that constructions may be continued. It 
would decline to accept any bond from Mr. McConneU lest such docu- 
ment might indicate that it clauns jtirisdiction over the territory, — a posi- 
tion it declines to assume at this time. It would appear that the only 
manner in which Mr. McConneU can now possibly improve his position 
is to apply for a concession from the present Government of Panama. 
Costa Rica would not, in my opinion, contest its right to grant such a 
concession at this time, but it would appear an act wanting in cour- 
tesy to Costa Rica, and therefore it might be refused. It should also be 
considered that the independence of the new Republic may greatly change 
the boundary cjuestion with Costa Rica, and, if the territory alluded to is 
finally awarded to the latter, such action on the part of Mr. McConneU 
may work to his prejudice here. Without fm-ther discussion of the matter, 
I can state that the Government of Costa Rica asserts that it has not 
demanded cessation of Mr. McConnell's work under threat of confiscation 
or otherwise. 
With assurances of my respect, I beg to remain, Sir, 

Your most obedient servant, 

William Lawrence Merry, 
United States Minister. 

No. 85. 

May 24th, 1904. 
To THE Honorable John Hay, 
Secretary of State, Washington : 
Sir, — Referring to your No. 36 of April 2.3rd I have the honor to for- 
ward copies and translations of the communications from the Foreign 
Office here in answer to my inquiries in the matter of the McConneU con- 
cession. 

I am. Sir, with great respect. 

Your obedient servant, 

William W. Russell. 



60 

No. 364. 

Office of the Secretary of Government, 

May 19, 1904. 
YotfR Excellency: 

In addition to my official Communication 326, dated May 10th, I beg to 
inform Yom* Excellency that neither the American citizen McConnell 
(H. L.) nor any other person is concessionaire of the right to build a steam 
tramway or to lay tracks between the Sixaola River and the harbor of 
Gandocan. 

Under date of the 2nd of April of last year the Secretary of the Treas- 
ury of the extinct Department of Panama, Dr. Julio Guerra, entered into 
Contract No. 44 mth Mr. Ricardo Roman Romero, in \'irtue of which con- 
tract there was conceded to the said gentleman the exclusive privilege 
"for the construction and estabhshment of a steam tramway, which would 
connect the harbor of Gandocan with the right bank of the Sixaola River 
in the District of Bocas del Toro." 

This contract was approved by the Governor of the extinct Department, 
Dr. Facundo Mutis Duran, upon the same date upon which it was entered 
into. Sent to the National Government of the Repubhc of Colombia for 
approval, the Minister of Finance, Dr. Ruperto Ferreira, annulled the con- 
tract absolutely through a resolution dated 31st of August, 1903, and com- 
municated to the said government upon the same date in official despatch 
No. 382 of the 6th section of that Ministry. I have the honor of enclosing 
to your Excellency an authentic copy of the said resolution. 

With sentiments of my most distinguished consideration, 
I am, Your Excellency, Yom- obedient servant, 

(Sgd) ToMAS Arias. 
To HIS Excellency W. W. Russell, 

Charge d'Affaires of the United States, Panama. 

(A copy of the enclosure referred to is found on page 10.) 



No. 966. 

September 16th, 1904. 
To THE Honorable John Hay, 

Secretary of State, Washington, D.C.: 
Sir, — Your No. 592 of August 8th was acknowledged on August 20th, 
and a definite reply would have already gone forward in relation to the 



61 

interests of Mr. H. L. McConnell at the Rio Sixola and Port Gadocan, had 
it not been necessary to await the reply of the Government of Costa Rica 
to my question regarding her claim of jurisdiction over the territory alluded 
to. While even at this date a formal reply has not been received, the two 
interviews I have had with the Acting Secretary of Foreign Relations, 
Sur-Jose Astua Aguilar, enable me to furnish the information needed. 

The Government of Costa Rica now not only claims jurisdiction over the 
valley North of the Sixola River and Port Gadocan, but I am credibly 
informed that such jurisdiction is not disputed by Panama. The divisional 
line between the two Republics will be established at the Sixola River on 
the Atlantic side, all North of the middle of said river being conceded as 
the territory of Costa Rica when the boundary treaty is formally completed 
and promulgated. Under these conditions, if Mr. McConnell desires fm-ther 
to pursue his labors at that location, it will be necessary for him to arrange 
terms of occupation with the government here and under the land laws 
of Costa Rica. Instead of further contesting the question, it now appears 
to be in his interest to freely concede the jurisdiction of Costa Rica as the 
preliminary step in obtaining a concession to develop the territory in ques- 
tion and to use the Port of Gadocan, which has not thus far been opened 
to foreign commerce by governmental decree. With assurances of my 
highest consideration, I beg to remain. Sir, 

Your most obedient servant, 

William Lawrence Merry, 

American Minister. 

No. 968 

Leg.\tion of the United States of America, 
San Jose, Costa Rica, 

September 21, 1904. 
To THE Honorable Alvey H. Adee, 

Acting Secretary of State, Washington, D.C.: 
(Sir,— Referring to my No. 966 of 16th instant and No. 967 of 17th inst., 
I have the honor to state that I have received a long despatch from the 
Government of Costa Rica bearing upon both, and which it is desirable 
shall reach you prior to any action regarding the McConnell case or in con- 
nection with the pending boundary question between Costa Rica and 
Panama. 

The despatch in question and enclosure reached me late this evening, 
and the mail closing mil not permit translations and copies being forwarded 



62 

until the direct New York mail leaving here on the 26th inst. I am alsa 
credibly informed that some new difficult}'' has arisen in the boundary 
ciuestion between the two governments wliich may prove an impediment 
to a friendly settlement. I hope to send you more explicit information 
upon these points in my next, which should reach you about three days 
after this. With assurances of my highest consideration, I beg to remain. 
Sir, Your most obedient servant, 

William Lawrence Merry, 

American Minister^ 

No. 969. 

September 24, 1904.. 
To THE Honorable Alvet A. Adee, 

Acting Secretary of State, Washington, D.C.: 

Sir, — I have the honor to forward herewith copy and translation (En- 
closm'e No. 1) of a despatch received from the Acting Secretary of Foreign 
Relations of Costa Rica in relation to the McConnell occupation of the 
Port of Gadocan and lands adjacent thereto, in the valley of the river 
Sixola. Also copy and translation (Enclosure No. 2) of an Executive 
Decree of the Government of the Republic of Panama, wherein possession 
of said territory and port are accorded to Costa Rica pending the settle- 
ment of the boundary question between the two governments. 

These documents appear conclusive as to the advisabihty of appUca- 
tion to the Government of Costa Rica by Mr. McConnell, if he desires to 
further prosecute his work at the location referred to, it plainly appearing 
that Mr. McConnell is now a trespasser upon the pubUc lands occupied 
by Costa Rica. Mr. Adolf Bolder, a merchant at Bocas del Toro, was 
at this Legation prior to my retm'n from the United States, and, I am told 
by the Acting Minister of Foreign Relations, was to obtain a power of 
attorney from Mr. McConnell, with whom he is associated in this matter, 
authorizing him to arrange with the goverimient here for permission to 
prosecute the work, but I have seen nothing of him, although he wrote 
me from Bocas del Toro under date of August 18th, to which I replied 
on Sept. 2nd, approving his suggestion to return here for the purpose 
above stated. I am informed that he is now at Panama. With assur- 
ances of my highest consideration, I beg to remain. Sir, 

Your most obedient servant, 

William Lawrence Merrt, 

American Minister. 



63 

[The enclosures mentioned are the same as those enclosed in Minister 
Calvo's letter following.] 

Legacion de Costa Rica, 
Washington, December 23, 1904. 
iSiV,— Referring to what Your Excellency was pleased to express to 
me on Thursday, the 22nd instant, in regard to a claim of one Mr. Mc- 
■Connell against my government, and confirming the information per- 
sonally communicated to Your Excellency in August and September 
last, in connection thereon, I have the honor to send herein enclosed copy 
and translation into Enghsh of a note from the Secretary of State for 
Foreign Relations of Costa Rica to His Excellency the Minister of the 
United States at San Jose, and decree of the Govermnent of Panama 
mentioned in the same, in which the demonstration is given that no wrong 
has been done to the claimant, Mr. McConnell, but, on the contrary, that 
lie has incm-red grave responsibiUties by having violated in various man- 
ners the laws of the country. 

^ Be pleased. Sir, to accept the renewed assurances of my highest con- 
sideration. 

(Signed) J. B. Calvo. 
His Excellency John Hay, 
Secretary of State. 

[Enclosure No. 1.] 

Department of Foreign Relations, 
San Jose, September 21, 1904. 

[Translation.] 
Mh. Minister: 

I have the honor to answer your Excellency's note of the 2d instant, 
in which Your Excellency is pleased to communicate to me that Mr. H. L. 
McConnell, alleging to have acquired rights on certain lands at Gandoka 
to build thereon a tramway by virtue of a concession granted to him at 
Panama, the exercise of which, he says, has been obstructed by my gov- 
ernment, has apphed to the government of Yom- Excellency requesting 
its high protecting intervention. 

By virtue of the uti possidetis which for many years has been in force 
between Costa Rica and Colombia, and now between Costa Rica and the 
RepubUc.of Panama, our bordering Une on the Atlantic side is the river 
Sixaola, which means that the Gandoka region is under Costa-Rican sov- 



64 

ereigntj', and that, therefore, no man can invoke ownership, possession, 
or usufiiict in the said lands, except upon some title emanating from the 
Costa-Rican Government and authorities. 

Mr. McConnell is, therefore, um-easonable in pretending to base his 
alleged acquisition upon a grant or permission of the Governiment of 
Panama; but the case is still worse for him because even this kind of an 
explanation cannot be made by him. The Government of the Isthmus 
denies the existence of the alleged concession, and, what is worse, has 
explicitly declared by Resolution No. 28 of the Department of Govern- 
ment and Foreign Relations, dated August 2nd ultimo, and published 
in No. 47 of the Gaceta Oficial of the present year, that Gandoka has been 
and will continue to be ■ndthin the jurisdiction of Costa Rica as long as 
the question of the boundary between the two countries is not finally set- 
tled. That Resolution, a copy of which I have the honor to enclose here- 
with, and which, as Your Excellency \\t11 perceive, refers to a violation 
of the immigration laws of the Isthmus, positively states that Gandoka 
is foreign land to the Panamanian Government. It was issued against 
Messrs. Adolfo Bolder & Co., who appear to be associated or cointerested 
with Mr. McConneU in the matter to which Your Excellency refers. There- 
fore, the conclusion is inevitable that the said Mr. McConneU cannot use 
even the argument of error or ignorance about the rights of Costa Rica 
in the above-stated region. 

The foregoing would be sufficient to show to the righteous and learned 
government of Your Excellency that the clahn to which this correspond- 
ence refers is groundless, but I deem it advisable to set forth before 
Your Excellency the facts and the attitude of the claimant from the stand- 
point of our laws and authorities. 

Mr. McConneU, without having obtained any concession, and acting 
merely de facto, by simple occupation, as if the lands were vacant, took 
possession of a great extent of lands at Gandoka, cut down the timber 
in some places, undertook cultivation in others, began to construct a 
tramway, and, not satisfied with this, violated our customs laws, causing 
ships to come to that coast, and imported merchandise as if said locality 
had been authorized to carry on foreign commerce. The Government 
of Costa Rica, desiring to put an end to those acts of manifest usm'pation 
of ownership and disregard of the national sovereignty, and at the same 
time to enforce om* customs laws, sent to Gandoka not a military force, 
but a smaU section of the customs officers of the custom-house of Limon, — 
a section which still remains there in the exercise of its functions. 



^I 



65 

These are the facts which I have already had the honor to explain to 
Your Excellency in the conference with which Your Excellency was pleased 
to favor me in these days. I entertain the conAaction that Your Excel- 
lency wiU clearly see that the claimant, Mr. McConnell, has no acquired 
rights in Gandoka, which is a portion of Costa-Rican soil; that, therefore, 
no wrong has been done to him by the action of our authorities in causing 
the power and the sovereignty of the State to be respected, and that, very 
far from being right, he has incurred a graA^e responsibility by taking pos- 
session of lands" with no title of anj' kind and engaging in foreign trade 
through a port which, according to our laws, is not a port of entry. 

I close this communication mth the flattering hope that the wishes 
of Your Excellency to obtain information about this matter have been 
fully satisfied, and, repeating to Your Excellency the expression of my 
high respect and consideration, I have the honor to subscribe myself, 

Your most obedient servant, 

(Signed) Jose Astua Aguilar. 

His Excellency William L. Merry, 

Envoy Extraordinary and Minister Plenipotentiary 
of the United States of America. 

(A copy of Resolution No. 28 referred to is found on page .) 

No. 976 

October 9, 1904. 
To THE Honorable- Francis B. Loomis, 

Acting Secretary of State, Washington, D.C. : 

Sir, — I have the honor to advise the arrival here of Messrs. H. L. 
McConneU and 0. F. Bolder, their visit being for the purpose of ascer- 
taining whether any arrangement can be made with the Costa Rica Gov- 
ernment by which they can continue the development of the North side 
of the Sixaola Valley and the use of Port Gadocan as tributary thereto, 
pending the settlement of the sovereignty over said territoiy and port, 
Costa Rica being now in occupation thereof and having stopped their 
work. In accordance with your instruction to use my good offices with 
the government on behalf of Mr. McConnell, I introduced him to the Min- 
ister of Foreign Relations, stating the purpose of his visit and the hope 
that a mutually satisfactory solution can be reached. 

I beg to forward herewith (Enclosure No. 1) copy and translation of a 



permit from the Inspector of the Port of Bocas del Toro, Republic of 
Panama, authorizing the steamship "Orn" to proceed to Gadocan to 
discharge her cargo. The clearance is not specified as being "Coastmse" 
or "Foreign," but, if the latter, would be illegal for the reason that Port 
Gadocan has not been declared open to commerce bj'^ the Government of 
Costa Rica wliich is now in possession. The document is forwarded at the 
suggestion of Mr. McConnell. 

An able attorney has been employed by Mr. McConnell to draw up his 
proposed agreement with the Costa Rica Government, and he hopes that 
it may be accepted, possibly ■with some modifications. If decUned or 
vitiated by onerous requirements, Mr. McConnell having failed to accom- 
pHsh anything with the Panama Government, intends referring the case 
to the Department of State, but I hope this may not become necessary. 
In my verbal conmiunication with the Costa Rica Foreign Office regarding 
tliis matter, I have been careful to avoid discussion of the Loubet award 
and of the present boundary contention with Panama, except to assure 
the Minister of Foreign Relations that the United States Government will 
be much pleased if an agreement can be reached satisfactory to both 
governments. 

With assurances of my highest consideration, I remain, Sir, 
Your most obedient servant, 

William Lawrence Merry, 
American Minister. 

No. 976. 

[Translation.] 

Provisional Paper. Republic op Panama. 

First Class. To the Inspector of the Port. 

(Cliief of the Guard.) Present. 

Please grant permit that the steamer "Orn" in charge of her Captain, 
Morinkel, proceeding from Baltimore, and consigned to Otto F. Bolder, 
may weigh anchor for the place Gadocan (Sixola). 

Bocas del Toro, July 22nd, 1904. 

Otto F. Dolder, per Grabowski. 
Weigh anchor. 

The Inspector of the Port. 

(Signed) C. Clement. 



67 

No. 980. 

October 15th, 1904. 
To THE Honorable John Hay, 

Secretary of State, Washington, D.C: 

Sir, — I have the honor to report that, after twelve days of active effort, 
Mr. H. L. McConnell has been unable to obtain any agreement with the 
Costa-Rican Government authorizing liim to continue liis work at Port 
Gadokan and in the Sixola Valley. He intends remaining here a few 
days to consult with Ms attorney, but I apprehend that he ^viU not obtain 
any favorable result. Although Minister Pacheco has not formally re- 
sumed the duties of the Foreign Office, and returns to Panama on the 
20th inst., he has been active in the McConneU case, and I have called 
upon him twice after my visit to the Acting Mnister of Foreign Rela- 
tions, Seiior Astua, to suggest some arrangement favorable to Mr. McCon- 
nell. Mr. Pacheco asserts that he hopes to aiTange the boundary question 
with Panama shortly after liis arrival there on the 22nd inst., and cannot 
permit any arrangement here with Mr. McConneU to impress the Panama 
Government unfavorably; that it might seriously interfere with his nego- 
tiations. 

Mr. McConnell having failed to obtaia the arrangement he desired at 
Panama after a month of patient effort, and being equally unsuccessful 
here, I do not see what he can now do except to await the result of Min- 
ister Pacheco's negotiations at Panama. It is due to the Costa Rica 
Foreign Office to recognize that, although aware that Mr. McConnell has 
been m-ging action at Panama prejudicial to its interests, the government 
officials here have received him pleasantly, and have considered his case 
on its merits, as it appears to them, Mr. Pacheco remarking that he cannot 
blame him for trying to protect the interests of himself and associates. 

With assurances of my highest consideration, I beg to remain, Sir, 
Yoiu" most obedient servant, 

William Lawrence Merry, 

American Minister. 

No. 76. 

December 20, 1904. 
To THE Honorable John Hay, 
Secretary of State, Washington : 
Sir, — Referring to your unnumbered instruction of October 29th, 1904, 
delivered to me while home on leave of absence, in regard to the national 



control of the land where an American citizen, Mr. H. L. McConnell, claims 
to have a concession, I have the honor to report as follows : — 

The section of country on the Caribbean Sea, between the mouth of the 
Sixola River and Point Mona, in which Mr. McConnell is located, was 
given to Colombia (Panama) by the Loubet award. Costa Rica, however, 
had possession before this arbitration, and has not yet yielded control to 
Panama, nor has Panama formally demanded it. 

A discussion is now taking place here between Senor Don Leonidas 
Pacheco, Envoy Extraordinary and Minister Plenipotentiary of Costa 
Rica, and the GoA^ernment of Panama in regard to the entire boundary 
line between Costa Rica and Panama with reference to its complete 
readjustment regardless of the Loubet award. Therefore, it will be im- 
possible to determine until this discussion is concluded wliich nation will 
have permanent sovereignty. The indications, however, point to Costa 
Rica's retiring from this territory as part of a quid pro quo for Panama's 
retiring from a corresponding portion of Costa-Rican territory. 

In the meantime Costa Rica is exercising all police jurisdiction in this 
disputed section, and it would seem to me that McCoimell's complaints 
should be submitted to the government at San Jose. 

As supplementary to this despatch and as bearing upon the subject 
of McConnell's concession, I beg to enclose a copy of a letter addressed 
to me by Mr. McConnell which was not delivered to the Legation until 
after my departure for the United States last September, and which I 
haA'^e not had time to give earlier attention since my retm-n. 
I have the honor to be. Sir, 

Your obedient servant, 

(Signed) John Barrett. 



[Enclosure.] 

Pan.A-MA, September 27, 1904. 
Honorable John Barrett, 

United States Minister, Panama : 
Sir, — Referring to our interview of this morning, I earnestly beg to 
request that you make a report to the State Department at Washington 
as to the present status of the boundary question between Panama and 
Costa Rica as explained to me yesterday. I feel that such a report coming 
from you would greatly facilitate the adjustment of Costa Rica's inter- 



69 

ference with my operations in the territory between the left bank of the 
Sixola River and Monkey Point, which is a part of that awarded to 
Colombia (now Panama) by President Loubet, September 11th, 1900. 

If you can do so consistently, I would appreciate it if j^ou woidd also 
convey to the Department my statement to the effect that, in addition to 
■Costa Rica's having about two months since stopped all M'ork in the 
Gadocan on the coast between Monkey Point and the mouth of Sixola 
River, I am just now in receipt of a copy of formal demand from the offi- 
•cer commanding the Costa-Rican troops that all works of whatsoever 
nature on the left bank of Sixola River be stopped, and stating that, 
unless that order is obeyed, he will be forced to carry out his "instruc- 
lions." That practically means the suspension of aU my operations in 
that section, and the resultant losses, unless arrangements are made for 
prompt resumption, wiR be very great. 

The interference has heretofore been confined to work at Gadocan, where 
we are starting the active work of laying the railroad track and improve- 
ment of the harbor. 

While Panama c^uestions the legality of mj^ concession (wliich my 
attorney insists is vaHd),it offers to execute another as soon as the present 
compHcations with Costa Rica have been disposed of. 

This -government, however, admits its obUgations to protect my plant- 
ing interests, and on the 14th instant ad\'ised me, through an official com- 
munication authorized by the President and Secretary of PubUc Works, 
that the Secretary of State would be requested to demand that Costa 
Rica discontinue its interference. But on the 21st instant the Secretary 
of State addressed a resolution to me to the effect that his Office did not 
deem it prudent to make such a demand while the execution of the terms 
of the Loubet award are being discussed. Both Colombia and Panama 
have permitted, under written application for permission to plant fruit 
filed according to law and custom with the proper officials, that that and 
other improvements be carried on. Both these governments have all 
along up to the time of Costa Rica's stopping our work at Gadocan issued 
formal clearances for our lumber for that place, treating it as a home port. 

Since Panama professes a desire to protect us, but is apparently too 
weak, we feel that we have the right to ask and expect the United States 
Government to do so, and urge that you present the matter to the State 
Department and ask, in my name, that the necessary prompt cable action 
be taken to that end. 

Quite a large number of American citizens in Mobile, New Orleans, 



70 

Montgomery, Nashville, Tenn., Charleston, S.C., Cambridge, Mass., New- 
York City, Washington, D.C., and other cities, have recently become in- 
terested in these operations through the organization of the American 
Banana Company, to which the properties and rights referred to are to 
be transferred. The terms of the Arbitration Treaty of 1896 stipulated 
clearly that whatever the decision may be will itself serve as a complete 
and binding treaty between the contracting parties, and will admit of no 
appeal whatsoever. There can be no question, therefore, but that Panama 
now has the right of jvu-isdiction over the territory in question, wliich fact 
is pubhshed by the government itself in that part of its Constitution 
setting forth its territorial limits. 

The boundary hne as set forth in the award is fuUy as distinct as the 
provisional one named in the statu quo or treaty of 1880 (copies of wliich 
are doubtless on record in Washington). Hence there can be no greater 
difficulties in at once putting the former into effect than in the latter in 
accordance with terms of the Treaty of articles 4 of 1880 and 1896. 

The State Department will find, by referring to Minister Merry's report 
of November 14th, 1903, that it clearly states that Costa Rica "does not 
at this time claim jurisdiction." That report reads in part, "The terri- 
tory through which the road [my road] is being constructed is awarded to 
Colombia by the Loubet decision, but Costa Rica claimed jurisdiction 
prior thereto." As no new treaties or agreements have been entered into 
since that date, Costa Rica can now have no good or legitimate reason for 
her forced assumption of jurisdiction. 

Yours respectfully, 

(Sgd) H. L. McCONNELL. 



71 



McCONNELL'S FIRST MEMORL^I. TO THE STATE DEPARTMENT. 
Filed 21st December, 1904. 

"UNITED STATES OF AMERICA. 
Depaetment of State. 



Iisf THE Matter 

OF 

The Petition of Herbert L. McConnell 
AND Others for Redress for Property 

SUMMARILY SEIZED WITHOUT PROCESS OF LaW 

AND Lawful Business interfered with on 
Territory on the Sixola Rfv^er neah the 
Boundaries of the Republics of Costa Rica 
AND Panama. 



To the Honorable the Secretary of State, 
Washington: 

Sir, — I, Herbert L. McConnell, a citizen of the United States of 
America, and residing in the City of Mobile in the State of Alabama, 
through my attorney and counsel, Macgrane Coxe, of the City and State 
of New York, do hereby respectfully show as follows : — 

Touching again the matter relative to which I have already made sev- 
eral appeals to our Government for protection, and referring to the expres- 
sion found in the Department's letter of November 23d, 1904, addressed 
to Mt. Sydney R. Prince, of MobUe, Ala., I beg to saj^ that it is apparent 
that the presentations of the matter, as heretofore made by me, have im- 
pressed the Department ■nith the A-iew that in order to protect my rights it 
is necessarj- that our Government intervene between Costa Rica and 
Panama to determine, or in respect to the determination of, the boundary 
line between those two Republics. I respectfully submit that the neces- 
sities of the case do not requii-e this, and that such misapprehension has 
probably arisen from my ha\ing too strongly presented the rights wliich 
I claimed and claim under a certain concession obtained by me from the 



72 

Republic of Colombia or the Department of Panama through one Romaa 
Romero. 

In my claims under that concession I have, as I am now ad^dsed and 
verily beUeve, and therefore aver, neglected to make a proper presenta- 
tion of the rights which were vested in me long before the present difference 
as to the jurisdiction over the territory occupied bj' me arose, and which 
rights are quite as important and of the very greatest importance to me. 

The view taken by the Department, as I understand it is that, if I en- 
tered upon territory in dispute between the two countries by reason of a, 
controversy between them as to the proper location of their common 
boundary Hne, I must necessarily be held to have taken such chances as 
may be incident to the final determination of the tme boundary line be- 
tween the two Republics, without interference from our Government. 
The legaUty and equity of this position I by no means impugn, but I take 
it that, if I can show to the satisfaction of the Department that I acquired 
under Colombia vested rights in a given territory while the jurisdiction of 
that territory was concededly in Colombia, then no controversy that may 
subsequently have arisen between Costa Rica and Colombia or Costa Rica 
and Panama will be permitted to disturb the rights so acquired and vested 
before such controversy arose. This is the assurance that, as I understand 
it, was in substance given me by Mr. Adee's letter of January 19th, 1904,: 
and it is this claim that I make and now desire to present for your consid- 
eration. In other words, I assume that the Government of the United 
States wiU, in the first place, decline to interfere in any manner in the differ- 
ence as to the boundary line between the two RepubUcs, but will insist 
that all rights that were vested in its citizens before the difference arose, 
or not affected by the difference, shall be recognized and protected by 
whatever government may have jurisdiction over the territory, either 
temporary or permanent. 

In 1880 Costa Rica and the Republic of Colombia entered into an agree- 
ment known apparently to their officers as the Statu Quo whereby a 
line of jurisdiction was established between those two countries pending 
the establishment by arbitration and treaty of the true and final hne di- 
viding their respective jurisdictions. This hne was estabhshed along the 
centre of the Sixola River, and gave Costa Rica temporary jurisdiction 
over the territory now occupied by me. In 1896, however, a treaty of 
arbitration was entered into, whereby it was referred to the President of 
the French Republic to arbitrate between their respective jurisdictions, 
and by this treaty it was declared that 



73 

"The arbitrator's decision, whatever such may be, will itself serve 
as a complete and binding treaty between the two high contracting 
parties, and will admit of no appeal whatever. Both parties bind 
themselves to a faithful fulfilment and to resign all claims against 
the decision, staking thereon their national honor." 

On the nth day of September, 1900, the President of the French 
Eepubhc made his award, which was accepted by Costa Rica. The message 
of the President of that Repubhc to the National Congress on May 1, 
190] , reads in part as follows (the italics are mine) :— 

_ "Referring to our international relations, I will commence by giv- 
ing you an account of an important and transcendental subject whose 
settlement has blasted the hopes of the Government and shocked in 
like manner the whole country. I refer to the decision, which as 
arbitrator his Excellency, Mr. Emile Loubet, President of the Re- 
pubhc of France, rendered under date of September 11th of last 
year, regarding the boundary dispute between Costa Rica and Co- 
lombia. Costa Rica, during a long period of laborious investiga- 
tion, and at a cost of great pecuniary sacrifice, succeeded in obtain- 
ing extensive and valuable evidence respecting her territorial rights 
m dispute, and on that evidence she based her defence and her hope 
of complete success in the controversy. Unfortunately, and con- 
trary to all expectations, the decision which— as far as it refers to 
th& southern part of the Republic satisfies in a great measure our 
legitimate claims by adjudicating to us a goodly portion of the ter- 
ritory of which we ^.oere deprived under the -provisional Statu Quo of 
the boundanes, and with it the exclusive sovereignty of the "lit- 
toral" of Golio Dulce— /zxe.s the boundary on the Atlantic side upon 
unfavorable conditions, and which signify for Costa Rica a consid- 
erable loss of the rights claimed. 

"That decision says:— 'The boundary between the Republic of 
Colombia and Costa Rica shall be formed bv the spur of the Cor- 
dillera which runs from Monkey Point on the Atlantic Ocean, and 
encloses to the north the Valley of the Tarire or Sixaola River, and thence 
by the Cham of mountains which divides the waters of the Atlantic 
from the Pacific to the ninth degree of latitude approximately and 
h-om thence it wiU follow the watershed between the Chiriqui Vieio 
River and the affluents of the Golfo Dulce, terminating at Burica 
Point m the Pacific Ocean.' 

"In the judgment of this Government, the boundary line was formed 
by the spur of the Cordillera which runs from Cape Mona {Monkeu 
romt) on the Atlantic Ocean and encloses to the north the valley of the 
lanre or Sixola River near the mouth of this river; that from thence 
it takes a southwest westerly direction to the left bank of this river 
to the confluence of the Yurquin or Zhorquin River (also called Sixola 



74 

Culebras or Dorados) to 82 degrees 50 minutes west meridian of 
Greenwich, 85 degrees 10 minutes west of Paris, and 9 degrees 33 
minutes north latitude." 

This portion of the boundary line fixed by the Loubet Award, as con- 
strued and contended for by the Costa-Rican Government, gave the terri- 
tory occupied by me to the Republic of Colombia, so that the location of 
this particular territory within the jurisdiction of Colombia was not only 
determined by the Award, but conceded by Costa Rica, and was not in 
any manner in dispute. 

Ai-ticle 1 of Law 61 of 1874, and of Law 48 of 1882, estabhshed by the 
RepubUc of Colombia, and subsequently adopted by the RepubUc of Pan- 
ama, and wMch were in force at the time that I first acquired the rights 
in the territory in dispute, and which are still in force, when translated, 
read as follows : — 

"1st. Any person that occupies uncultivated lands and estab- 
Ushes thereon residences and artificial cultivation, acquires the right 
of property over the cultivated land whatever may be its extension. 

"2nd. When the cultivation consists of artificial pastures, coffee, 
cocoa, or whatever other fruits which do not necessitate the repeat- 
ing of the planting in order to obtain periodical crops, the cultivator 
acquires the right to have allotted to him a portion of adjoining wild 
lands equal in extent to those cultivated." 

In April, 1903, after the Loubet Award had assigned the territory now 
in question to the RepubUc of Colombia, and after the President of the 
Republic of Costa Rica had, as shown above, declared the construction 
placed by that Government upon the Award in so far as it designated the 
boundary line, and by such declaration assigned the territory in controversy 
to Colombia, and at a time when there was no dispute between the two 
Republics over Colombia's jurisdiction over that territory, I entered upon 
the lands now in controversy which then were uncultivated lands, and 
planted a large portion of them, and expended many thousands of dollars in 
the cultivation of fruits which do not require replanting, and established and 
built thereon about forty residences and other buildings. In doing so, I com- 
pUed strictly with the laws of Colombia then in force, and I respectfully 
submit that by so doing I acquired a vested right in the property planted 
at a time when there was no controversy over the boundary hne between 
the Repubhcs which in any manner affected the territory under discussion. 

In January, 1904, the War Department of the United States Govern- 
ment caused an official map to be made of the territory within the juris- 



75 

diction of Panama. It is presumed that it not only had before it such in- 
formation as I was able to obtain in regard to that territory, but much 
other matter to which I had no access, and according to the map thus 
made the territory in question was placed wdthin the jurisdiction of Pan- 
ama. A copy of this map is here-R-ith filed, and prayed to be made a part 
hereof. On February 15, 1904, the Government of Panama declared un- 
conditionally its sovereignty and right of jurisdiction over the territory 
through the pubUcation of its Constitution Ai'ticle 3 of which reads as 
f oUows : — 

"The territory of the Republic is composed of all the territory 
with which the State of Panama was created by an additional act of 
the Granadian Constitution of 1S53 on the 27th of February, 1855, 
transferred in 18S6 into the Department of Panama, with its islands 
and the continental and insular territory awarded to the Republic 
of Colombia by virtue of the decision of the President of the French 
Republic on the 11th day of September, 1900. The territory of the 
RepubUc stands subject to the jurisdictional limitations stipulated, 
or \^-hich may be stipulated in the Pubhc Treaties celebrated ^^^lth 
the United States for the construction, maintenance and sanitation 
of whatsoever means of interoceanic communication. The boun- 
daries with the Republic of Colombia will be determined by Public 
Treaties." 

These matters are mentioned merely to show that in entering upon this 
territory, claiming rights under the Repubhc of Colombia, I did not reck- 
lessly invade territory in controversy, but took possession of property only 
that had been assigned by the clear terms of the Award to Colombia, as 
already conceded by the Government of Costa Rica, as subsequently in- 
terpreted by the War Department of the United States, and as heretofore 
sho-WTi the Government of Panama on February 15 last declared to the 
world that that Award was in effect. 

Having obtained fuU title to the lands in controversy under the laws of 
Colombia and of Panama, I have the clear legal right to build a private 
railroad over them mthout any further concession from any government. 
It is true that I also claim special privileges for this road under a conces- 
sion obtained from the Repubhc of Colombia before the formation of the 
Repubhc of Panama, but, as these privileges are questioned upon grounds 
that carmot affect either my vested right to plant this territory or my 
right to construct a private road, without special privileges, over these 
lands, nor my right to the safety of my person and property from moles- 
tation or seizure while in the peaceful pursuit of my la-^-ful business, and 



76 

as these rights were vested when there was no dispute between the Republic 
of Costa Rica and the Republic of Panama over the boundary line that 
affected this territory, I do not now claim protection for the special privi- 
leges that I acquired under that concession, but am insisting upon the pro- 
tection of my vested rights acquired in a territory admittedly within the 
jurisdiction of Colombia at the time that I, in strict conformity with its 
laws, acquired a property interest therein. 

Prior to the fall of 1903 I had expended large sums, not only in planting 
these lands, but in making preliminary preparations for the construction 
of a railroad over them, when Costa-Rican soldiers stopped my survejang 
for a day or two at a time. At my instance you cabled Mr. Merry, Amer- 
ican Minister at Costa Rica, to use his good offices to prevent that Govern- 
ment from interfering further with my operations. On November 14, 
1903, Mr. Merry reported to your Department in part as follows: — 

"It [the Govermnent of Costa Rica] makes no assertion of invalid- 
ity [of the McConnell concession] because it does not at this time 
claim jurisdiction. 

"The Acting Minister of Foreign Relations assures me that his 
Government has not demanded that the work be stopped, neither 
has it given permission that the construction may be continued." 

"It would decline to accept any bond from Mr. McConneU lest 
such document might indicate that it claims jm-isdiction over the 
territory, — a position it declines to assume at the present time." 

"The territory through which the road is being constructed is 
awarded to Colombia by the Loubet decision, but Costa Pdca claimed 
jurisdiction prior thereto." 

And it concludes, — 

"Without further discussion of the matter, I can state that the 
Government of Costa Rica asserts that it has not demanded cessa- 
tion of Mr. McConneU's work under a threat of confiscation or other- 
wise." 

Costa Rica then withdrew from further interference with me or my busi- 
ness until the latter part of the month of July, 1904, when it sent soldiers 
to Gadocan, and, after permitting the discharge of a large portion of a cargo 
of railroad suppUes, confiscated them, stopped all of the railroad opera- 
tions, and on September 21, 1904, the officer in charge of the Costa-Rican 
soldiers issued a written order that all the work, including that of planting 
(extending over a territory of some twenty rdles) on the left bank of the 
river, be discontinued. This attitude of Costa Rica has continued ever since, 
greatly to my damage. 



77 

I already have a large body of the lands in question planted with fruit, 
some portion of which is now maturing and going to waste for want of 
shipping facilities. In addition to this I have sustained a loss of many 
thousands of dollars through the confiscation of the railroad suppUes re- 
ferred to by being compelled to retain in my employ a number of persons 
who are under regular salaries, and have been damaged in many other 
respects. 

As my rights were obtained under the laws of Colombia, which laws still 
obtain in Panama, I appHed to the Panamanian Government for protec- 
tion. It admitted that it owed me protection, and the President of the 
Repubhc caused an official communication, dated September 14, 1904, to 
be sent me, which communication reads as follows : — 

"Mr. H. L. McConuell requests, in the foregoing memorial, that 
the Government of the Republic of Panama shall arrange with the 
Government of Costa Rica that, provisionally and pending the set- 
tlement of the boundaries between the two Republics, no impedi- 
ment shall be offered to the work in which he is now engaged on the 
spot denominated ' Gadocan ' situated on the left bank of the Sixola 
River. 

"Although this Department has concluded that the Republic of 
Panama does not recognize as valid the contract entered into between 
Mr. Ricardo Roman Romero and the Governor of the extinct De- 
partment of Panama, which was eventually transferred to Mr. Mc- 
Connell, it nevertheless, in consideration of the work that the pe- 
titioner has done on the spot denominated 'Gadocan' in matters 
of agriculture on a large scale, investing therein a large capital, the 
Govermnent is wdUing to afford him all possible protection within 
its sphere of action. In consequence, the Government resolves: — 

"To request the Secretary of Government and Foreign Relations 
to address the Govermnent of Costa Rica and to demand from said 
Government that, provisionally and pending the settlement of the 
precise boundaries between the two Republics, no impediment be 
offered by the authorities of the Govermnent of Costa Rica to Mr. 
H. L. McConnell in the work in which he is now engaged in the place 
denominated Gadocan." 

On September 22 the Secretary of Foreign Relations of Panama, Mr. 
Arias, wrote me as follows: — 

"For your information and final consequence, I remit you herewith 
the resolution which on this date was dictated by this office. Such 
reads as follows : — 

"Republic of Panama: Executive National Power: Office of the 
Secretary of Foreign Relations: No. 42, Panama, September 22, 1904. 



78 

The Office of the Secretary of Construction urges in resolution No- 
33 of the 14th instant that the Office of Secretary of State and For- 
eign Relations demand of the Government of Costa Rica the discon- 
tinuance of interference wdth the work which Mr. H. L. McConnell 
is carrying on at the place called 'Gadocan.' As the execution of 
the arbitrated decision on limits between Panama and Costa Rica 
is being discussed at these moments, this Office does not consider it 
prudent at present to make the recjuested demand and be it so re- 
solved. Inform the Secretary." 

It was not until long after I had entered upon these lands, and had ex- 
pended large sums of money in planting, that I had any intimation what- 
soever that either Government contended that there was any dispute over 
the boundary hne between the two Republics which would in any way 
affect the land that I was occupying, and I respectfully submit that any 
controversy touching tliis matter which may have arisen after my rights 
were vested can in no wise affect those rights or deprive me of the protec- 
tion of my own Government in their maintenance. 

The present negotiations between Panama and Costa Rica, as stated to 
me in September last by the President and Secretary of Foreign Relations 
of Panama, and as I verily beUeve, are in the nature of an exchange of 
territory rather than the fixing of boundary hne between the two coun- 
tries. Costa Rica proposed to exchange the territory on the Pacific be- 
tween the Statu Quo and Loubet Award lines for all that territory belong- 
ing to Panama near the Atlantic, west of the 82d degree 50 minutes west 
meridian of Greenwich, while Panama was willing to make the exchange 
basing the Hne near the Atlantic on the 83d degree. In October Mr. 
Pacheco, Costa Rica's Secretary of Foreign Relations, confirmed the state- 
ments of the officials of the Panamanian Government as to the exchange 
proposed. 

Even if Costa Rica had at this time temporary right of jurisdiction over 
the territory, that Govermnent's interference would be in bad faith both 
with the United States Government and -with me, since in November, 1903, 
it clearly disclaimed the right of jurisdiction to Mr. Merry, a copy of whose 
report was placed in my hands by the Department of State in a letter from 
the Secretary to Hon. George W. Taylor, member of Congress under date 
of December 1, 1903. 

As shown, I have under the laws of Colombia and Panama obtained 
vested rights in lands, the sovereignty and jurisdiction of which were at 
the time conceded by Costa Rica to Colombia, and in February last were 
unconditionally claimed by Panama through the publication of its Consti- 



79 

tution; that Government admits that it owes us protection, and Costa Rica 
-after sHght interference with my work in the fall of 1903 declared to the 
United States Minister that it did not claim jurisdiction, under which as- 
.surance I continued to carry on improvements, and expend large sums of 
money, feeling assured of no further interference. 

Under all the circumstances I respectfully submit to you that Costa 
Rica's action in seizing my railway supphes and stopping my work after 
it had been carried on for fifteen months at very heavy cost was wholly 
unwarranted, and especially is that tme since it could not possibly sustain 
any loss by allowing it continued. That Government could, if it so de- 
sired, and if permitted by Panama, continue to police the territory without 
interfering with my operations. Unless rehef is obtained at an earl}^ date, 
my losses, which are needlessly caused by Costa Rica, will be very great 
indeed through the impossibility of sliipping fruit which will be maturing 
in great quantities. 

I carried on all those operations alone until the 18th of June, 190-1, 
when a large number of American citizens became interested through the 
organization of the American Banana Company (which is to succeed to 
the properties), all of whom look to our Government for the protection 
of their interests. Not only I, but all but about six of said persons, not 
only are now, but at all the times herein mentioned, were native-born 
citizens of the United States of America, and fully intend always to con- 
tinue so to be. 

As has been shown, the lands in question are on the north bank of the 
Sixola River, which river empties into the Caribbean Sea, near the little 
port of Gadocan. The lands entered for cultivation and cultivated by 
me under the Colombian statutes above referred to amount to about 
10,000 acres, of which about 5,000 acres were planted by me and in full 
cultivation until my work was stopped as hereinafter stated. These lands 
were planted with the best banana plants, about one-half million in num- 
ber, and the total expenditures made by me in and about such planting 
and cultivation was upwards of $88,000. These plants, when in full 
bearing, which stage they should reach about the month of September, 
1905, will produce about nine hundred thousand bunches per year of a net 
value, after pa5Tnent of all cost and expenses of cultivation, gathering, 
handling, transportation, and selling, of about fifty cents per bunch at 
the Port of MobUe, or a total net value per annima of $450,000. 

In order to convey this crop to the coast for market, I have laid out on 
my said lands a tram or railway line of the projected length of about 



80 

twenty-five miles. But few rails have as yet been laid, owing to the inter- 
ference complained of, but before such interference began I had already 
cut and cleared the right of way, at a cost for this work alone of about 
$5,000. This rail or tram way is to be of forty-two inches gauge, the rails, 
the standard sectional steel rails (with steel angle joints), weighing thirty- 
five pounds to the yard, and the ties are likewise all to be of steel known 
as steel channel ties with steel cHps and bolts. I have also purchased 
and shipped to the ground one locomotive and five flat cars, but have been 
prevented from using them or otherwise disposing of them, as will herein- 
after appear. 

The first consignment of rails, ties, angle joints, cUps, tools, and ma- 
chinery for the work, and the locomotive, were shipped by the Norwegian 
steamship "Orn" from Baltimore on or about July 9, 1904. There were 
on board of steel rails 916 tons, and of steel ties about 26,000, with the- 
necessary angle joints, bolts, and clips for the same. The ship cleared 
from Baltimore for Bocas del Toro, Panama, entered the goods at the 
custom-house there, and duly there received a permit to proceed to Ga- 
docan for unloading (as will be seen by reference to Mr. Merry's No. 97& 
of October 9, 1904), and to that point it accordingly proceeded for this 
purpose. On arrival at Gadocan, however, the master, Mowinkle, was 
met by some Costa-Rican armed men, the commanding officer of whom 
forbade the unloading of the ship. Thereafter the commanding officer 
was prevailed upon to allow the unloading to go on until the Government 
at San Jos6 de Costa Rica could be communicated with. This took about 
eight days, during which the discharging of the cargo continued. At the 
end of this period, when about two-thirds of the cargo in tonnage, but 
three-fourths thereof in value, i.e., about $36,000, had been unloaded, 
the commanding officer of the Costa-Rican troops ordered all work of 
every kind to cease, and would not permit my agents to take or in any 
way use the landed merchandise or go on with the work in any manner. 
During the work of unloading a large fighter, about half loaded with cargo, 
was sunk in some sixty feet of water, and although I have procured a 
diving apparatus from New York at a cost of about $500 for the purpose 
of raising the fighter and its load, and have accessible the other appliances 
for the purpose, I have been prevented from doing so by like orders of the 
Costa-Rican officers. 

The "Orn" was thereupon compelled to, and did, withdraw to Bocas 
del Drago to unload the balance of the cargo ; that is to say, some twenty 
miles away, with all the added expense of transshipment and rehandhng 



81 

thereby made necessary. Again, on or about August 5, 1904, the schooner 
"Oscar G" left Mobile with about 50,000 feet of lumber, five flat cars, 
and some general merch'andise, provisions and tools for the works, of the 
value and cost in aU of about $2,500, and was obUged likewise to discharge 
at Bocas del Drago. 

Although, as shown, as much as 916 tons of steel rails and 26,000 steel 
ties have been seized or expelled by or under the authority or alleged 
authority of the Costa-Rican Government, this is by no means all the loss 
that Mr. McConnell and his associates suffer in this respect. They are 
under contracts calling for a total delivery (including those above men- 
tioned) of these rails and ties, with the necessary accessories, such as angle 
joints and cHps, of 1,375 tons of steel rails at $20.95 per ton, and 50,000 
steel ties at 51J cents per tie, all f. o. b. Baltimore, and all deliverable by 
December 31st, 1904. Thus not only have these citizens been put to the 
loss of the property actually seized, and to the other great losses conse- 
quent on their being compelled to stop all their work, even that of the 
rescue of property sunk by accident into deep sea water, but they are also 
inaminently threatened with having to respond in damages here for the 
non-fulfilment of contracts for the purchase here of materials necessary 
and appropriate for the development and improvement of the territory in 
question. It is to be noted that a considerable proportion of the labor 
performed and money expended as herein set forth was performed and 
expended on the right or southerly bank of the Sixola River, that is to 
say, on territory not in dispute, but conceded to Panama, and that the 
stoppage of the work as aforesaid will render aU of this expenditure of no 
value whatsoever, and a total loss to your memorialists, although con- 
cededly made and performed by them in accordance with law. 

Aside from all prospective damages, by loss of crops, profits, and other- 
wise, Mr. McConnell's actual outlay to date, which, if he is not presently 
permitted to go on with the work, will prove almost a total loss, amounts 
(including freights, insurance, etc.) to about $200,000, as follows: — 

Port Gadocan and Railway Engineering $4,000 

Clearing railroad right of way 5,000 

Locomotive, 5 flat cars, and hand cars 4,500 

Hoisting outfit and diving apparatus 2,000 

Railroad tools, etc 2,500 

' 916 tons railroad steel rails 24,900 

'■ 26,000 steel ties 16,300 



82 

Launches, lighters, etc 8,000 

Buildings 10,000 

Stock of merchandise 8,000 

Wharf improvements at Gadocan 2,000 

5,000 acres planted in bananas 88,000 

$175,200 
Rails and ties to be delivered before close of 1904 as 

per contracts 23,000 

$198,200 

Interest charges will more than make up a total actual expenditure of 
over 1200,000. 

"Why should all tliis property be wantonly wasted? The continuance of 
the work, under proper safeguards, can do no harm to either RepubUc, 
but must benefit both of them in bringing capital and a large new industry 
upon their borders. Is not the enlightened course (admitting for the sake 
of argument that there is a dispute as to jurisdiction, wliich we do not 
concede) to release this seized property at once, and permit the work to 
go on, the property and persons concerned to be eventually subjected to 
whatever sovereignty may be found to have dominion and authority? 

As to the seizure itself, it is respectfully submitted that there can be Uttle 
doubt that it was whoUy unwarranted, and so tortious in its nature that 
it is the duty of the Government of the United States to ask, and its clear 
right to expect, prompt release of the property to its 0T\Tiers. If the 
Republic of Costa Rica makes any claim that its customs laws or any 
other law has been violated by your memoriaUsts, and that it has seized 
and holds the property, and has caused the stoppage of said work, by 
reason of any such violation or for any failure or wrong-doing whatsoever, 
then it is respectfully submitted that such a claim was not put forth until 
after the said seizure, and j'our memoriaUsts had no notice or knowledge 
of any such claim prior thereto. On the contrary, as we have seen, but 
a few months before the seizure, when referring to a previous act of in- 
terference with your memoriaUsts' work, and one of much less gra\ity to 
your memoriaUsts, the Costa-Rican Government, in the most distinct and 
formal manner, through the Minister of the United States at San Jose, 
not only denied that it had made any seizure or confiscation or demanded 
cessation of the work, and disclaimed the same, but even disclaimed any 
jurisdiction or any intention of claiming any jurisdiction whatsoever over 
the territory in question (Mr. Merry's No. 889 of November 14, 1903). 



83 

Under the faith of these disclaimers your memorialists transported these 
large amounts of property to the lands in question for their development, 
and expended these large sums of money in and about the same business; 
and the seizure and stoppage of work, they respectfully allege, is an un- 
warrantable and tortious violation of their substantial property rights, 
without any redress in the courts of either of the Governments concerned, 
and therefore the proper subject of diplomatic interposition in their behaK. 

It is true that after having entered the steamship "Orn" at Bocas del 
Toro, and having given it permission to proceed to Gadocan to discharge, 
the Panaman Government has made a claim for duties on these goods, 
but said claim is in process of adjustment, and said Government has not 
made any protest against the discharge of said cargo, nor has it filed or 
asserted any claim or hen upon said goods by virtue of which they are being 
held by the Costa-Rican soldiers, armed men or Government, as the agents 
of the Panaman Government or otherwise. 

Wherefore your memorialists respectfully pray: — 

First. That the Government of the United States wiU demand of the 
proper Government or Governments that the property heretofore seized 
may be at once released to your memorialists, including houses, railway 
supplies, and aU their property; and that they shall be permitted to 
pursue the work of planting, cultivating, and developing the territory in 
question, including the completion of said tram or railway, the raising of 
the sunken materials, and the landing of those delayed, and of such others 
as may be necessary and appropriate at Gadocan, and in all respects con- 
tinue the work of development and improvement upon which they have 
entered, free of and from any molestation whatsoever by said Governments 
or either of them; and 

Second. That your memorialists demand damages for their losses 
caused them by said illegal acts on the part of the Government of Costa 
Rica in United States gold or the equivalent thereof, as follows:— 

(a) For the moneys actually expended in and about the cultivation, 
erection of buildings on and improvement of said lands, as per the schedule 
hereinbefore set forth, the sum of $200,000, with interest thereon at the 
rate of six per centum per annum from the 25th day of July, 1904. 

{b) As losses sustained by them by reason of their being prevented from 
carr3dng on said work, the sum of $2,000,000, with interest on said sum 
at the rate of six per centum per annum from the date hereof. As here- 
inbefore shown, a conservative and reasonable estimate of the net profits 
of the said banana-growing enterprise is at least the sum of $400,000 a 



84 

year, which, capitalized at the rate of 20 per centum per annum, produces 
a capital loss of the said sum of $2,000,000. 

(c) Under and by virtue of the provisions of the laws of the RepubUcs 
of Colombia and Panama hereinbefore set forth (Fols. 14 and 15, Ante), 
your memoriaUsts have, by Adrtue of their planting and cultivation of 
said about 5,000 acres of said land, as aforesaid, acquired "the right to 
have allotted to them a portion of adjoining wild lands equal in extent 
to those cultivated." 

For the losses of these adjoining lands, they are, at a conservative esti- 
mate, entitled to and they demand damages in the amount of $10,000, 
with interest thereon at the rate of six per centum per amium from the 
date hereof. 

Third. For such other and further reUef as in the premises may seem 
just. 

And your memoriahsts will ever pray. 

Dated Washington, December 21, 1904. 

(Sgd) H. L. McCONNELL, 

For himself and on behalf of the 
persons composing the American 
Banana Company. 
Macgrane Coxb, 

Attorney and of Counsel for Memorialists, 
63 Wall Street, 

New York City, N.Y. 



District of Columbia, 
City of Washington, 

Herbert L. McConnell, being duly sworn, deposes and says that he 
is one of the memorialists mentioned in the foregoing memorial; that he 
has read the same, and knows the contents thereof, and that the same is 
true of liis own knowledge except as to the matters alleged on information 
and belief, and that as to those matters he beUeves it to be true. 

H. L. McCONNELL. 
Sworn to before me this 
22d day of December, 1904. 

(Sgd) WILLIAM McNEIR, 
Notary Public. 
{Notarial Seal.) 



85 



FURTHER COMMUNICATIONS TO AND FROM THE STATE 
DEPARTMENT AFTER McCONNELL'S FIRST MEMORIAL. 

No. 619 

Department of State, 
Washington, February 8, 1905. 
William L. Meery, Esquire, 
etc., etc., etc., San Jose. 

Sir, — I enclose duplicate copies of a Memorial filed with the Department 
on December 22, 1904, by Mr. H. L. McConneU, of Mobile, Alabama, on 
behaK of himself and others composing the American Banana Company, 
and of the docimients filed with the Memorial. I also enclose two copies 
of a letter to the Department, dated February 2, 1905, from Mr. Macgrane 
Coxe, attorney for McConnell and the said Banana Company. 

You wiU bring the matter informally to the attention of the Costa-Rican 
Government, and wiU also furnish it copies of the documents above men- 
tioned for its information. 

It is alleged that McConneU and the Banana Company are sustaining 
unnecessary losses from goods sunk in a Ughter which they are not per- 
mitted to salve, as well as other unnecessary losses and injuries, and it is 
desirable that they should be, in any event, saved from such unnecessary 
losses. 

You will say informally to the Minister for Foreign Affairs that the 
Department does not now undertake to pass on the merits of the question 
presented by Mr. McConnell in the Memorial aboA'^e mentioned. But you 
win add that the Department would be pleased if a modus vivendi could be 
arranged between the Costa-Rican government and the said McConnell 
and his associates, which would have the effect of saving them from im- 
necessary and avoidable losses for the time being. The Department does 
not imdertake to interfere in any matter of boundary disputes between 
the Costa-Rican Government and Panama, and any equitable arrangement 
that might be made between the former government and McConnell and 
his associates would be without prejudice to any rights of title which either 
of the parties may be eventually considered to have. You will say to the 
Minister that the Government of the United States is not making any 
intervention in the matter, reserving the whole subject for fuller considera- 
tion, should that become necessary, but you are simply acting in the way 



86 

of good offices with the earnest hope of the Department that some satis- 
factory modus Vivendi may be arranged between McCormell and his as- 
sociates, on the one hand, and the Costa-Rican Goverimient on the other. 
You will cable briefly the substance of the Costa-Rican reply. 
I am, Sir, 

Your obedient servant, 

John Hay. 



No. 101.5. 

Legation of the United States op America, 

San Jose, Costa Rica, February 24, 1905. 

The Honorable John Hay, 

Secretary of State, Washington, D.C. : 

Sir, — I have the honor to acknowledge receipt of your No. 619 dated 
February 8th, with enclosures relating to the McConnell claim against the 
Government of Costa Rica. Having carried out your instruction therein, 
I have sent you cablegram reading as follows, translated from code: "Costa 
Rican Goverimient expects to sign boundary line treaty with Panama in a 
fortnight. Meanwhile has agreed to mutually satisfactory modus viveiidi 
with McConnell." 

While the proximate signing of the treaty assigns to Panama Port 
Gadocan and the lower valley of the Sixola River, the ratification of the 
treaty by the Panama Congress which does not meet imtil September, 
1906, unless called in special session, makes a modus vivendi with Costa 
Rica possibly advisable, although, after the treaty has been signed, I feel 
confident the Government will no longer obstruct the work of Mr. McConnell. 
In carrying out your instruction, I called upon Minister Pacheco to aid me, 
as Minister Astua has other portfolios under his control and is overworked. 
Mr. Pacheco leaves for Panama via Colon on Monday, February 27th, to 
sign the treaty. He asserts that Mr. McCoimeU has done all in his power 
at Panama to prevent a settlement of the boundary question, while Mr. 
Astua states that on two occasions he expressed his willingness to treat with 
Mr. McConnell for an occupation of the Sixola valley lands and Port Gado- 
can pro tempore, but Mr. McConnell declined his proposals. In this I 
think Mr. Astua is correct, Mr. McConnell decHning for the reason that he 
expected to be asked for a money consideration, and because Mr. Pacheco 



87 

lias already admitted, as stated by Attorney Coxe, that the Sixola country 
would ultimately be given up to Panama. 

One point that Mr. Coxe presents as important to his contention is, in 
my opinion, of no value. I refer to the clearance of the steamship "Orn" 
for Port Gadocan by Panama officials at Bocas del Toro. A maritime 
clearance has no value as proving sovereignty of the port for which a ship 
is cleared. It is not contended that, when the Collector of the Port of New 
York grants a clearance for Liverpool, the latter port is under American 
jurisdiction. The document merely permits the "Orn" to "clear" and 
"weigh anchor" for Port Gadocan. The same clearance would have 
been granted for Limon, Costa Rica, if requested. No pretence is found in 
the clearance that Gadocan is under Panama jurisdiction, and there is no 
pretence of permission to discharge cargo there. Consequently, the action 
of the supreme Government of Panama in approving the two hundred dollar 
fine against Bolder & Co. for bringing a Syrian from the temporarily Costa- 
Rican port of Gadocan is not contradicted by the clearance from Bocas 
•del Toro by Panama officials of a ship bound to the same port. 

I have no idea that the Costa Rican Government now intends to impede 
the work of Mr. McConnell, but a modus vivendi that will compromise 
its position in connection with any indemnity claim will naturally be de- 
clined. 

I shall be pleased to do anything in my power to place Mr. McConnell 
and associates in a position to prosecute their work in the Sixola Valley 
without obstruction from Costa Rica. If Mr. McConnell thinks a modus 
vivendi important after the boundary treaty with Panama has been signed, 
specifying therein the location of his present operations, I have no doubt 
it can now be arranged unless it be connected -nath a claim for indemnity. 

It is proper in discussing this question to inform the Department that 
prior to the commencement of work by Mr. McConnell at Sixola, and while 
it was expected that valley would remain under Costa Rica jurisdiction, 
a "denouncement" or presumption of practically the same lands was made 
by Costa-Rica citizens which was subsequently sold to American citizens 
.for $16,000. It is not certain that the subsequent legal obhgations con- 
nected therewith (in regard to planting, etc.) have been fully comphed Avith, 
but it may now happen that, when Mr. McConnell applies at Panama for 
■concession of these lands, he may be confronted by a demand for recognition 
of such prior rights as were acquired under Costa Rica jm-isdiction. Mr. 
McConnell is aware of this, and has said to me that he does not attach much 
importance thereto, considering the denouncement forfeited by failure to 






fully comply -Rith the law authorizing it. I allude to this as indicating the 
risk he assiuned in locating his work upon territory of doubtful title, both 
as to sovereignty and private ownership. 
With assurances of my highest consideration, I beg to remain, Sir, 
Your most obedient servant, 

William Lawkence Meeet, 

American Minister^ 



No. 1018. 

Legation of the United States op America^ 
San .Jose, Costa Rica, 

March 9th, 1095. 

To THE Honorable Francis B. Loomis, 

Acting Secretary of State, Washington, D.C. : 

Sir, — I have the honor to forward herewith the following explanatory 
enclosures: (copies) No. 1, February 23d, and No. 2, March 8th, Min- 
ister Merry to Minister Astua; No. 3, cablegram from you dated March 
6th, and my reply of March 7th, aU alluding to the McConneU case. 
With assurances of my highest consideration I beg to remain. Sir, 
Your most obedient servant, 

William Lawrence Merry, 

American Minister^ 
Three Enclosures: 
Minister Merry to Minister Astua. 
Minister Merry to Minister Astiia. 
Copies Cablegrams from Hon. Acting Secretary 
Loomis and reply. 



No. 1018. 

[Enclosure No. 1.] 
No. 234. 

February 23d, 1905, 

To His Excellency Senor Don Jose Astija Aguilar, 
Minister of Foreign Relations, etc., etc.. 
Republic of Costa Rica, San Jose. 

Esteemed Sir, — I have the honor to forward herewith informally, for 
the information of Your Excellency's Government, a copy of the com- 



plaint of Mr. PI. L. McConnell, a citizen of the United States, relating to 
alleged damages inflicted upon himself and associates by reason of the 
action of Your Excellency's Government at Port Gadocan and in the Sixola 
valley. 

The Department of State does not now undertake to pass upon the 
merits of the question presented by Mr. McConnell in the Memorial en- 
closed, but v,'ill be gratified if a modus vivendi can be arranged between 
Your Excellency's Government and the said McConnell and associates 
which wiU prevent avoidable losses for the time being. The Department 
of State does not undertake to interfere in the boundary question between 
Costa Rica and Panama Governments, and any equitable agreement 
thus made would be without prejudice to the rights of either of the par- 
ties interested. 

The Government of the United States is not making any intervention 
in this matter, reserving the subject for further consideration, should that 
become necessary. But if a modus vivendi with Mr. McConnell and his 
associates can be arranged as suggested, it will appreciate the courtesy 
and good will thereby manifested. 

Be pleased, Mr. Minister, to receive the assurances of my most distin- 
guished consideration, and permit me to subscribe myself Your Excel- 
lency's Most obedient servant, 

William Lawrence Merry. 

No. 1018. 

[Copies of Cablegrams. Enclosure No. 3.] 

Hon. Secretary Loomis to Minister Merry. 

Washington, March 6th, 1 905, 5 p.m. 
Merry, Minister, San Jos^ : 

Did you receive Department's instruction of February 8th last in re 
McConnell? What negotiations have been had? Reply by telegraph 
briefly. 

Loomis . 

Minister Merry to Hon. Secretary Loomis. 

San Jose, Costa Rica, March 7th, 1905. 
Sec. State, Washington: 

Instruction stated was received. I replied by cable and mail February 



^ 



90 

twenty-four. Government of Costa Rica prouiised arrangement for 
modus Vivendi mth McConnell or agent when either arrives. Boundary 
treaty was signed yesterday Panama. 
(Code Translations.) 

No. 1018. 

[Enclosure No. 2.] 
No. 236. 

March 8th, 1905. 

His Excellency Senor Don Josf Astua Aguilar, 
Minister of Foreign Relations, 

Repubhc of Costa Rica, San Jose : 

Esteem,ed Sir, — Following my official call this a.m. at Your Excellency's 
office, in connection with the McConnell case, I have the honor to acknowl- 
edge receipt of your note inviting my personal visit at one o'clock to- 
morrow, which I accept -with, pleasure. 

Whatever may have been the status of the McConneU claim vs. Your 
Excellency's Government heretofore, the signing of the Panama boun- 
dary treaty on the 6th inst. has, in my judgment, entirelj^ changed it, 
indicating the advisability of prompt action to avoid useless and serious 
responsibihty. Mr. McConnell should, it appears to me, be at once ad- 
vised to hereafter address himself to the Panama Government when dis- 
cussing his position at Gadocan and the lower Sixola valley. It appears 
only an act of justice to himself and associates that Yom' Excellency's 
Government shall promptly permit him to proceed -ndth his work, subject 
to the control of the Panama Government, for which the territory is tem- 
porarily occupied in trust by Your Excellency's Govermnent, until the 
treaty shall be approved by the Congress of Costa Rica and that of Pan- 
ama. This course appears not onlj^ equitable, but will avoid reclama- 
tion for damages which must otherwise follow. 

For this reason I have respectfully suggested that I may be permitted 
to telegraph my Govermnent that, "the boundary treaty being signed, 
the Government of Costa Rica no longer opposes or obstructs the work 
of Mr. McConneU and associates at Gadocan and Sixola valley." 

Assuring Your Excellency that my action is induced by my desire to 
avoid future contention, I have the honor to subscribe myself, with most 
distinguished consideration, Your Excellency's most obedient servant, • 

William Lawrence Merry. 



91 

Legacion de Costa Rica 
Washixgtox, May 25, 1905. 
Personal. 

Hon. Willlui L. Pexfield, 

Solicitor, Department of State : 
My dear Sir, — I have the honor to send you enclosed herein, as promised, 
a copy of a translation into English prepared at this Legation, of the appli- 
cation presented to mj' Government by ilr. Herbert Lee McConnell, April 
3, 1905, in relation to which I wiH have the pleasure to call on you, if con- 
venient, Saturday, the day after to-morrow in the forenoon. 

Verjr sincerely yours, 

J. B. Calvo. 

[Translation.] 

To THE HoXOU-iBLE THE SeCKETAET OF StATE, 

Departments of Foreign Affairs : 

I, Herbert Lee McConnell Scott, promoter, a citizen of the LMted 
States of America and a resident of the City of MobUe, Alabama, tempo- 
rarily residing in the City of Washington, District of Columbia, being of 
lawfvil age and vmmarried, hereby respectfully state as follows: — 

For a number of years I have been engaged in the business of growing 
bananas in the neighboring Repubhc of Panama, and in ^-iew of the deci- 
sion rendered by President Loubet in regard to the boundaries between the 
two States, and it also being imiversaUj- known in Panama that in accord- 
ance mth said decision the valley of Sixaola belongs to said Repubhc, I 
commenced, in conformity -nith the laws of that Repubhc, to plant on 
both banks of the river and near its mouth. I should also state that in 
those uncultivated regions I saw no indications whatever that the Govern- 
ment of Costa Rica was not in accord ■nith the interpretation of the decision 
as understood in the neighboiing Repubhc as well as other countries. Fur- 
thermore, the Government of Costa Rica did not advise me as to its atti- 
tude respecting those lands untU my agricultural works had attained a 
great development, and my object in stating these facts is to demonstrate 
the good faith with which I began tilling on the left bank of the Sixaola 
River, and why I endeavored to use the port of Gandoca for my works. 
Kno'ning the spirit of justice and equity which pervades the pohcy of your 
Government, I trust that I may be protected in the possession of said lands 
heretofore cultivated by me, and therefore beg leave to present to the high 



92 

consideration of tlie President of the Republic and through the worthy- 
channel of your office the following articles of agreement: — 

1. Mr. McConnell shall have the right to cultivate and work one mile 
on the left bank of the Sixaola River, beginning at its mouth and extending 
to its confluence with the Uren River. 

2. If Costa Rica, by diplomatic agreement, should transfer at any time 
to the Republic of Panama the said one mile and adjacent lands up to 
Gandoca, McComiell shall not have the right to make any claim against the 
Government of Costa Rica by virtue of this contract, provided, however, 
that said possession should not be respected by the Government of Panama. 

3. Mr. McConnell shall furthermore have the right to establish a railroad 
line from his plantations to the port of Gandoca; and he shall also have 
the right to export his products through said harbor and to import through 
the same place whatever shall be necessary for his works and private use, 
as well as for liis employees or workmen; and the custom duties on impor- 
tations and exportations, including those of sliips, shall be the ordinary 
duties of this RepubUc. 

4. All of the merchandise and articles belonging to Mr. McConnell which 
Avere attached in Gandoca by the Government of Costa Rica shall be re- 
turned to the owner thereof. Mr. McConnell shall have the right to land 
and float all rails, cars, and other materials for the construction of the 
railroad. He shall furthermore have the right to land in Gandoca all of 
the materials of the said kind that the authorities of Costa Rica did not 
allow to be landed and which materials are deposited at the present time 
in Bocas del Drago. 

5. All the railroad materials, rolhng-stock, inclusive, as well as the ma- 
terials for the construction of wharves and buildings annexed to the rail- 
road and wharves, which may belong to Mr. McCoimell, shall enter at any 
time free of any duties. 

6. Mr. Coimell shall have the right to construct at the port of Gandoca 
wharves, piers, and such other convenient works as may be necessary to 
facilitate the mooring of the ships wliich may arrive at that port. 

7. Mr. McConnell shall give to the public service his railway Une under 
the same tariff conditions wliich are now in force regarding the Railroad 
of Costa Rica. Besides, he shall also give to the public service his pier or 
piers, wharf or wharves, charging therefor a fair and reasonable rate. 

8. As soon as the railroad Une for the service of Mr. McCoimell's plan- 
tations shall be completed to the mouth of the Uren, Mr. McConnell binds 
himself to construct railroad branches to such places in which he may find 



93 

-owners of plantations who can assure him a traffic of not less than 75,000 
bunches of bananas per year for each new railroad niile that he may con- 
struct; but -ndth the understanding that Mr. McConnell shall not be obliged 
to construct any longer extension than eight kilometers each year, and he 
shaU not be obhged to construct branches, the cost of which may exceed 
25,000 colones per mile (1,609 meters, 31 centimeters). Should he con- 
struct more than eight kilometers a year, the excess shall be credited to 
his obligation in the following year. Mr. McConnell shall have the right, 
however, should he deem it convenient, to construct branches freely and 
in any direction whatever. 

It seems to me that the proposed arrangement would open to the com- 
mercial Ufe of tliis Republic all that vast territory of Talamanca. The 
Government would increase its revenues with all the fiscal taxes upon 
consumption, not only from the towns that may be formed on tliis side of 
the Sixaola River, but also from these already existing, or that maj^ be 
built on the other bank of the river. Talamanca requires an enterprise 
■on a large scale to serve as a centre for the development of other small 
concerns; i.e., a railroad system and such works at the port of Gandoca 
as may seem useful both to the international and coastmse traffic. All 
this may be obtained and made possible by the terms of the contract which 
I have the honor to submit to the Government. 

Awaiting a reply, I remain, 

Yours very truly, 

(Signed) H. L. McConnell. 
San Jose, .\pril 3rd, 1905. 

San Jose, April 12, 1905. 
Mr. Herbert Lee McConnell Scott, 
Present. 

This Department acknowledges receipt of your communication of the 
3rd instant addressed to mj^ Government, in which you explain the reason 
and manner by which you hold possession res nullius of quite a large tract 
of land belonging to this Republic and situated on the margin of a river 
marldng the southern boundary of this country towards the Atlantic, and 
submitting that in \iew of the justice of yom- argument this Government 
should grant you several concessions of extraordinary importance. 

In your communication you state that for several years you have carried 
on the business of banana raising in Panama, and believing that aU of the 
valley of Sixaola belonged to Panama, as was understood from the award 



94 

of President Loubet, as well as by the public opinion in the Isthmus, you 
not only carried on the work on the right bank of the river, which is the 
territory of Panama, but also on the left bank of said river, which is well 
known to have been always Costa-Rican territory and is so at present by 
virtue of the uti possidetis estabhshed between the two nations and in force 
from time immemorial, and so recognized by both nations. 

In setting forth the above inexplicable error, which you could have 
easily avoided by a diligent study of the true state of the matter, you pre- 
sume to estabhsh that you were acting in good faith when you took pos- 
session de facto, without a title or even a hcense from this Government, of 
lands belonging to Costa Paca, — that is to say, assimiing an unlawful occu- 
pancy amounting to a trespass against said sovereignty, not only in what 
refers to the unlawful appropriation of the land, but also in what refers 
to the importation of merchandise as carried on by you in Gandoca, a port 
not open by our foreign customs regulations ; and, furthermore, you add 
that my Government itself kept you in said belief by reason of not having 
informed you of its attitude regarding those regions before you had made a. 
great development in your enterprise, and because when you took possession 
of said land you saw no indication by which you could make out that this 
Repubhc was not in accord with the interpretation, which, as you say, 
was given in Panama respecting said award. 

Against the above insufficient argmnents adduced by you in order to 
justify the fact of your possession and advantage of said lands acquired 
by no legal means, for which there was no excuse, unless we set aside the 
most elementary principle of pubhc law, I find myself compelled to state 
to you, firstly, that not only by the Department of Foreign Affairs of Colombia 
before the secession of the Isthmus, but also by the Panama Government 
since its independence which gave to Panama international status, the 
river Sixaola has been considered as the boimdary on the Atlantic coast 
of both Republics, even after the award of the President of France, which 
award gave solely the general data for a demarcation of boundaries not yet 
carried into effect, evidenced by the resolution of the Secretary of the State 
of Panama, No. 28, dated on the 2nd day of August, 1904, against 
Mr. Adolfo Bolder, who tried to estabhsh for his own benefit that the ter- 
ritory of Gandoca belonged to said Repubhc. 

Said resolution was pubhshed in the Official Gazette of the 23rd of the 
above-mentioned months and reads as follows: — 



95 

No. 969 

Copy of the Executive Resolution of the Government of the Republic 
of Panama, published in the Official Gazette of that Republic, 
Year One, No. 47, Second Term. 

Resolution No. 28, Republic of Panama: National Executive Power, 
Secretaryship of Government and Foreign Relations, No. 28, Panama, 
August 2, 1904. 

By the resolution of June 10th of the current year the Alcalde of Bocas 
del Toro imposed a fine of two hundred "pesos" ($200) upon the firm 
of Adolf Bolder & Co. for ha\dng carried in one of their vessels to that 
town a Syrian proceeding from the Republic of Costa Rica, — a decision 
which the Provincial Governor confirmed. As the said firm has not con- 
formed itself to this decision, it now requests revision by the Executive 
Power. As appears by the procedure instituted to impose the fine alluded 
to, and by the evidence given by the respective Governor, the Syrian, 
■John George, embarked on the launch "Mazini," the property of Messrs. 
Adolf o Bolder & Co., at the place called Gandok in (Gadocan) situated 
between the mouth of the river Sixola and Point Mona. 

Although by the arbitral award made by the President of the French 
RepubUc, Gandokin forms part of the Panama territory, this award has 
not been executed yet, and, while this is the case, the Government of this 
Republic does not exercise jurisdiction at that place, because situated 
within the limits of the disputed territory which originated the arbitra- 
tion, and because the "statu quo" thus demands. In this manner the 
Costa Rican Government is the actual possessor of the place in reference, 
in the same way as that of Panama is the actual possessor of part of the 
Costa Rican territory on the Pacific. The execution of the award will 
give to each sovereign the possession of the territory which belongs to it, 
and the "statu quo" will then terminate, but meanwhile such is not the 
case. Gandokin uill remain under the ]urisdictionol action of Costa Rica, 
and, as it was at that place where George embarked with destination to the 
jurisdictional territory of Panama, it is clear that Messrs. Bolder & Co. 
have violated the law which prohibits Chinese, Turkish, and Syrian immi- 
gration, and the decree which regulates it, reason for which the decision 
under examination is correct, and it is thus declared. Register, Communi- 
cate, and Publish. The Secretary. 

Tom AS Aeias (signed), 

(Secretary of State, etc.) 



96 

It seems that Mr. Bolder has been a partner or a representative of the- 
aforesaid banana corporation, and such fact gives me sufficient ground for 
calhng yoiu- attention to the other fact; viz., that, inasmuch as the Govern- 
ment of Panama, the only party entitled to make declarations worthj' of 
attention in this respect and of informing you thereof, has never been 
considered to have dominion upon the left bank of the Sixaola River, 
your want of information upon the same subject is rather astonishing. 
Therefore, if you committed the mistake of depending upon popular ru- 
mors, uttered without knowledge of the facts and without authenticity, 
instead of applying to an official source to ascertain the said boundary,, 
it is absolutely unjust and unreasonable to shift the burden of such care- 
lessness upon the Government of Costa Rica. 

I fail to understand what material eAddence of the sovereignty of my 
nation you were looking for and trying to discover in the forestal zone and 
in other untilled lands which you have attempted to appropriate to your- 
self, since the boundaries of a State are established by virtue of its political, 
constitution and by virtue of international agreements, it being absurd to 
allege that countries lose their jurisdiction over such portions of their 
territory as are not designated by monuments, landmarks, or other par- 
ticular designations; in other words, that each country should build a 
wall on its boundaries or keep its contour within an uninterrupted cordoa 
of official authorities who would proclaim its nationality to those who- 
entertained any doubt thereabouts. 

In the second place, I deem it necessary to affirm that a State need not 
serve notice as to its sovereignty upon each individual in order to fully 
exercise such sovereignty, and it need not exercise ostensible acts of pos- 
session over every foot of its territory in order that its rights may be main- 
tained or that it may have the power to eject any trespasser therefrom in 
case of illegal occupancy, such being your case; and it is clear that, accepting 
the theory invoked by yoii in yoiu- communication, the integrity of all the 
nations of the world, even those of great populations and well defended, 
would be in danger. 

Finally, allow me to observe that my Government could not make known 
to you its attitude of defence of the Costa-Rican territory — an attitude 
which you might have kept constantly in mind as evidencing the highest 
characteristic of the nationality— because you acted rathout giving notice 
of yoin- actions and intentions to the PubHc Administration; and it was 
reasonable to believe that the Costa-Rican officers would ignore your works 
in the forest of Sixaola, which works are situated a great distance from the- 



97 

centre of Government, until the enterprise itself produced something 
■worthy of calling attention to such places, such as the maritime traffic in 
Gandoka and the tramway construction which you undertook on the coast ; 
and it is well known to you that since that time our Goverrmient has not, 
in any respect, failed to exercise its authority there by enforcing such acts 
of jurisdiction and vigilance as belonged to it. 

You take this opportunity of requesting in due form, for the first time, 
a concession for your enterprise; and, although it is true that this matter 
has been heretofore considered by this Secretary, you only promised to 
make offers, but such offers were not, in fact, made until the present time. 

The foregoing arguments having been set forth as an answer to the first 
part of your conmiunication, I proceed now to consider the different clauses 
of the agreement which you propose and to state generally all of the re- 
quirements and conditions upon which my Government would be willing 
to enter into an agreement with you, in accordance with the laws now in 
force respecting State lands and the regulations of Customs and Harbors. 

You ask for the right to cultivate and work a mile on the left bank of 
the Sixaola River from its mouth to its confluence \vith the Uren River, — 
that is to say, a large tract of land, embracing the greatest and best part of 
Talamanca, including that region of the zone which would still belong to 
Costa Rica in case the treaty of boundaries, Guardia-Pacheco, be approved; 
the opening of the harbor of Gandoca, — that is to say, the establishment of 
a custom-house, which will involve a great expenditure for buildings, 
officers, etc., just for the service of your plantations, because there are not 
actually in that zone, nor will there be for a long time, mercantile or agri- 
cultural interests which would support or justify such a measure; a railroad 
and wharf grant wMch would for the present benefit you alone; and un- 
qualified remission regarding the confiscation imposed upon the goods 
landed at Gandoca in spite of the fiscal laws; and, finally, exemption from 
all duties upon materials for the railroad, wharves, and buildings belonging 
to said enterprise. 

You ask for all this without offering any compensation in return for such 
valuable grant, in which the State, besides giving you all the exploitable 
part of the Sixaola valley to the very heart of Talamanca, containing many 
thousand hectares, and leaving closed all communication with the rest of 
that region with its water-way, which would render impossible the culti- 
vation of that zone. All that would give to you very profitable privileges 
which are not supported by any reason whatever. 

In the interview which you had with the undersigned Secretary you had 



98 

an opportunity to become acquainted \\dth the good will of tiie President 
of the Republic in regard to your petition, which good will is inspired by the 
justice and conamon interest of both parties, in accordance mth our fiscal 
organization and the respect due to national sovereignty, and I have the 
honor to assure you now of the benevolent attitude of the President, declar- 
ing at the same time that the basis of your Memorial is unacceptable, because 
we can neither do an act of hlaerality mth such enormous territory nor 
allow maritime traffic to be conducted in Gandoca because it is not a port 
open by the law, nor proceed to the establishment of a custom-house there 
for the sole benefit of your enterprise, because the grant and custom con- 
cessions for which you ask do not insure any benefit to the State. 

In confirmation of the good will wliich I have heretofore expressed, I 
have the honor to advise you that this office is now ready and wilhng to 
come to a satisfactory understanding -Hith you by means of an agreement 
to be entered into ad referendum in accordance with the following terms, 
and subject furthermore to the approval of the Congress of the Republic: 

First. The Government of Costa Rica should grant to you a lease for 
twenty-five (25) years, respecting, however, the rights of third parties, of 
that portion of the State lands extending along the left bank of the Sixaola 
River, beginning at its mouth and embracing two thousand hectares, in 
consideration of an annuity. 

Second. The aforesaid area should be measured at the expense of the 
enterprise into lots of five hundred (500) hectares, respecting, as stated 
iDefore, the better rights of tliird parties, and leaving between lot and lot 
a free area of not less than a half of said portion, which should belong to 
the State. 

Third. The Government should have the right to rescind de facto the 
lease as to those portions of the lands which shall not have been cultivated^ 
■within a period of six (6) years, or in the case of plantations which shall 
have been abandoned for a period of five (5) consecutive years. 

Fourth. At the expiration of the term of the lease all of the lands should 
revert to the pubUc domain, and the works, buildings, and improvements 
constructed thereon should become the property of the Pubhc Treasury, 
Avithout any indemnification whatever on the part of the Government. 

Fifth. You should redeem the goods wliich were confiscated by the 
authorities by paying the regiilarly prescribed charges according to the 
customs tariff then in force, but you could not exercise the right of navi- 
gating the waters of the Port of Gandoca until said port had been duly 
opened by the law of the Republic. 



99 

Sixth. A condition for the opening of said harbor should be that you 
pay all necessary expenses for the erection of the buildings required there 
for the exclusive use of the government officers, including more especially 
the offices for the Mayor, PoUce Station, and Custom House, and the salaries 
of said officials. You should deliver the necessary sums of money for the 
construction in a proper manner of said buildings and furnishing same in a 
suitable manner. 

Seventh. The annual salaries of the employees and the rentals shall be 
fixed by mutual agreement. 

Eighth. The harbor being thus opened, the railroad and wharf materials 
should pay one-half of the charges prescribed by the customs tariff. 

Ninth. During the period of the franchises granted to the other banana 
enterprises the exportation of bananas from your plantation should not be 
subject to duties. 

Tenth. The said lease, as well as all other additional covenants con- 
tained in this agreement, should be rescinded and rendered null and void 
from the date of the approval of the Guardia-Pacheco boundary treaty, 
which was signed at Panama by the respective Plenipotentiaries on the 
6th of March ultimo, regarding the zone that, according to the demarcation 
of boundaries, should pass to the jurisdiction of Panama, it being under- 
stood that in the event of a rescission the Government shall not be hable in 
any maimer Avhatever. 

This office considers that the approval of an agreement upon this basis, 
which is submitted for your perusal as a project which ought to result 
favorably to you and an indication of the friendly manner of arranging this 
business without requiring you to answer for the trespass you have already 
committed, is a benevolent action on the part of my Government which I 
hope you will fully appreciate. 

Yours very truly, 

(Signed) Jose Astua Aguilar. 



No. 1037 

Legation of the United States of America, 
San Jose, Costa Rica, April 23, 1905. 

To THE Honorable Francis. B. Loomis, 

Acting Secretary of State, Washington, D.C.: 

Sir, — I have the honor to advise that Mr. H. L. McConnell, of Mobile, 



100 

Alabama, with Mr. 0. F. Bolder, his Agent at Gadocan and Sixola, arrived 
here on 30th ult. to arrange, if possible, a modus vivendi with the Govern- 
ment of Costa Rica by which he can prosecute his work of planting in that 
section pending the approval of the treaty between Panama and Costa 
Rica by which that section is to become the territory of the former. On 
his arrival, after consultation with me, he arranged with his former attorney, 
Mr. Ricardo Jimenez, one of the best lawyers in the country, to present his 
case. On their first interview with Mr. Astua, Minister of Foreign Relations, 
he was requested to present his proposition to the Government. When 
this was submitted, Mr. Astua decUned it and jhanded him a contract for 
a term of twelve years under such conditions that Mr. Jimenez recommended 
its rejection. I do not forward copy and translation of this rejected con- 
tract for the reason that it is a voluminous document and its examination 
wiU not interest you or throw light upon the question. 

I was then called to take action in the matter as explained in enclosures 
herewith: Enclosure No. 1. translation and copy of note from Senor Carlos 
Lara, Sub-Secretary of Foreign Affairs, addressed to me, accompanying the 
proposal of the Government; Enclosure No. 2, copy of my reply thereto, 
joining with Mr. McComiell in its rejection, and stating my reasons therefor, 
also enclosing a memorandum of a modus vivendi the terms of which were 
arranged by Mr. Jimenez and myself, fulfilUng, in my judgment, the equitable 
requirements of the case. The government offices having been closed 
since the 20th inst. to open Monday, 24th iilst., I have not been able to see 
Mr. Astua and have not received a reply from the Foreign Office, but shall 
renew my efforts to-morrow to arrive at a mutually satisfactory result, of 
which I have some hope, provided the interests of third parties claiming a 
pre-emption or " denouacement " title from the Costa-Rican Government 
do not interfere. Even if without merit, a contest involving prior acquired 
title might possibly take the case into the Courts of Costa Rica, and prevent 
further action on my part at the present time. However, this is a possible 
contingency that we have not yet reached, and I shall spare no effort to so 
arrange the matter that Mr. McConneU may go on \vith his work without 
prejudice to other interests until the treaty has been approved or rejected 
by the Congress of Costa Rica and that of Panama. 

I hope that I shall be able to write you definitely and satisfactorily 
by the end of this week, and will, in any event, report the result of my 
next interview with the Minister of Foreign Relations, on which occasion 
I shall be accompanied by Mr. McConneU and Mr. Bolder as Ms interpreter 
and agent at Sixola. 



101 

With assurances of my highest consideration, I beg to remain, Sir, 
Your most obedient servant, 

William Lawbence Merry, 
American Minister. 
Enclosures : 

1. Note Sub-Sec'y to Mr. Merry. 

2. Mr. Merry to Minister Astua. 

3. Modus Vivendi from McConiiell. 



No. 1037. / 

y [Translation. Enclosure No. 1.] 

San .Jose, 15th of April, 1905. 
Secretary of Foreign Relations: 

Most Excellent Sir, — I have the honor to send Your Excellency for your 
information the accompanying copies of the "WTiting presented to this 
Secretaryship by Mr. Herbert L. McConnell Scott, citizen of the United 
States of America, and the reply given by the Secretaryship of Fomento 
to the showing and solicitation of Mr. McConnell regarding concessions 
for the exploitation of the lands on the left bank of the river Sixola. I 
am confident that Your Excellency, with your clear and correct judgment 
will see in these documents the spirit of friendly deference which animates 
my Government in the matter of Mr. McConnell. I avail of this oppor- 
tunity to reiterate to Your Excellency the assurances of my most dis- 
tinguished consideration. 

For the Mr. Minister 

The Sub-Secretary 
(s.) Carlos Lara. 
To His Excellency Mr. William Lawrence Merry, 

Minister Plenipotentiary of the United States of America. 

No. 1037. 

(Enclosure No. 2.) 

American Legation, San Jose, Costa Rica, 

April 18, 1905. 
To His Excellency Senor Dr. Don Jose Astua Aguilar, 
Minister of Foreign Relations, etc., etc., 
Republic of Costa Rica, San Jose : 

Esteemed Sir, — I have the honor to aclaiowledge receipt of Your Ex- 



102 

cellency's note of 15th inst., enclosing copy of a concession proposed by 
your honorable Government for the acceptance of McConnell et al., as 
appUcable to lands at Port Gadocan and in the lower Sixola Valley, where 
he has already expended a considerable amount of money in cultivation 
and improvements. 

After carefully reading the proposed concession, it seems to me prob- 
ably applicable to a long occupation of government pubHc lands mth 
ascertained title and permanent sovereignty. 

But it cannot, in any proper conception, be considered a modus vivendi,. 
which is all that I am instructed by my Government to obtain for Mr. 
McConnell ei al., and it appears to me all that he can accept under th& 
doubtful conditions of title and sovereignty above alluded to. I may be 
permitted also with entire good will and courtesy to Your Excellency's 
honorable Government to suggest that the proposed concession might 
become a serious detriment to the Treaty of Limits with the Repubhc of 
Panama, the signing of which has sincerely gratified the United States 
Government, and now awaits ratification. For while Your Excellency 
aims to proAade against this by terminating all rights granted to McConnell, 
etc., should the ratified treaty place the territory within the jurisdiction 
of Panama, the fact remains that Your Excellency proposes to grant him 
specified rights for which he is to incur serious financial responsibiUty on 
a territory which Your Excellency's Government has agreed, by a treaty 
signed and only awaiting ratification, to transfer ownership from Costa 
Rica to Panama. Your Excellency will pardon this allusion which is 
properly not within the precise limits of my official action, and presented 
only because my Government will sincerely regret that my action endan- 
gers the approval of a treaty so valuable to both Repubhcs, for which it 
entertains only sentiments of friendly appreciation and esteem. 

An extended discussion of the conditions set forth in a document which 
is, in my judgment, inapplicable to the situation, seems unnecessary,, 
especially as Mr. McConnell, under very competent legal advice, deems it 
necessary to decline acceptance, and has presented me with a copy of a 
simple viodus vivendi such as I have been instructed to soUcit in his behalf, 
and for which, under suggestion made by Your Excellency, he now visits 
this capital. A careful examination thereof impresses me with its fair- 
ness to both parties in interest, with such minor modifications as may 
possibly suggest themselves to Your Excellency's just and clear discern- 
ment. It is evident that the Government of Costa Rica cannot be equit- 
ably taxed with any fiiiancial responsibihty by reason of the modus vivendi 



103 

which Mr. McConnell desires: this he must provide for -within the limits 
of equity. And he has no right to ask any other privilege than that of 
continuing the development wliich mil certainlj^ increase the value of the 
lands he occupies, always subject to the sovereignty and laws of the Gov- 
ernment that vnR have ultimate jurisdiction. But I beg to suggest to 
Your Excellency's discernment that Mr. McConneU can only accept a 
modus Vivendi which -ndU enable him to prosecute his work until the ulti- 
mate sovereignty of the territory is decided, after wliich he must treat 
with the Government that acquires jurisdiction, for a more permanent 
occupation through mutual approval or failm-e of the treaty of limits. I 
have the honor to enclose herewith the proposed modus vivendi suggested 
by Mr. McConnell for the consideration of Your Excellency, and subject to 
such amendments as may be mutually agreeable. 

Be pleased, Mr. Minister, to receive the assurances of my most distin- 
guished consideration, and permit me to subscribe myself 
Your ExceUency's 

Most obedient servant, 

William Lawrexce Merry, 

American Minister, 

No. 1037. 

[Translation. Enclosure No. 3.] 

Mr. H. L. McConnell to Minister of Foreign Relations, etc., etc., of Costa 

Rica. 

To the Honorable Secretary of State in the Department of Fomento 
(Also ilinister of Foreign Relations) : 

Sir, — (Matter of H. L. McConnell in reference to lands on the Sixola). 

In reply to your communication which you were pleased to address to 
me on the 12th of the present month, I have the honor to make the follow- 
ing statements: — 

I am pained to see that my conduct in beginning and continuing work 
on the left bank of the Sixola has been considered by your Govermnent 
as a violation and disregard of the rights of the Republic. The points of 
view from which your Government and myself regard the facts are so op- 
posed that it is believed a discussion of the subject will lead to no result 
acceptable to both parties. That consideration and the fact that I came 
to Costa Rica under the impression, which I stiU entertain, that your Gov- 
ernment was disposed to agree with me on an equitable modus vivendi, 



104 

cuts me off, since it is unnecessary, from any discussion as to my rights from 
an international point of view or as to whether the fact of not having 
before arrived at a satisfactory arrangement is my fault or that of the 
Government. 

Coming now to the proposition which you are pleased to make me, I am 
not disposed to accept it, because it does not constitute a modus vivendi. 
Our difficulty depends essentially on the precarious situation, for the Gov- 
ernment at all events, in which the lands occupied by me have been and 
will be while the fate of the treaty as to boundaries with Panama is unde- 
cided. As is inferred from the last clause of your proposition, the ratifica- 
tion of this treaty will leave an uncertainty as to the valley of the Sixola. 
Our arrangement must be based on that uncertainty, and the question ought 
not to be considered the same as if the Government of Costa Rica could 
guarantee me for a long period of time the existence of the rights which it 
offers to concede me. The matter of ray having to pay during twelve years 
all the expenses of the public administration in Talamanca and of having 
to deliver the buildings, railways, plantations, and other improvements 
to the Govermnent of Costa Rica at the end of the term of lease, besides 
imposing on me burdens out of proportion to my enterprise, does not take 
account of the probabihty that very soon the whole, or the greater part, of 
these lands are to be delivered to Panama, and is not in accordance with 
the brevity of a modus vivendi, but rather with the idea of a concession 
assured and of long duration. 

On the other hand, I understand that if at present the port of Gandoca 
would not be opened except on account of my enterprise, it seems to me 
also that within a short time, whether my enterprise were in existence or 
not, the force of circumstances would obhge the Government of Costa Rica 
to promote the development of Talamanca or to take note of the sponta- 
neous development which will take place there; and they will be forced 
to open the port and to organize and maintain all the public services which 
good government demands. I do not, therefore, see the justice in my 
having to take upon my shoulders during twelve years the whole burden 
of the public expenses in Talamanca. The equity of the case, all that I 
ask, is that for the present, and while the uncertain position in which Costa 
Rica and Panama find themselves by reason of their treaty is being reme- 
died, I bear the purely fiscal expenses wliich my importations and ex- 
portations through Gandoca demand. Always provided that these expenses 
do not exceed five hundred colones per month, more or less, I am ready 
to defray them. 



105 

As the first clause of j'our proposition reads, it leaves my rights com- 
pletely in the air. You know, because I had the honor to speak to j'ou 
about it, that Mr. Keith and others have under way proceedings of de- 
nouncement of the lands which I occupy, and as matters are going, if the 
Government does not remedy it in time, it will not be long before title 
to the lands ■v\t11 be given to these gentlemen, not'n'ithstanding that the 
denouncement ^^olates the laws of the RepubHc in two respects. Th? laws 
of Costa Rica declare a denouncement null and void the proceedings of 
which have been abandoned for six mo^ths. The said denouncement was 
inactive for about three j'ears and a half, and not-Rithstanding this, and 
the fact that I had begun m}^ plantations in April, 1903, the denouncers 
continued their proceedings in Ma}% 1904, as though their rights had not 
lapsed. On the other hand, the Fiscal Code prohibits the denouncement 
of lands adjacent, for the ■nidth of one mile, to na\'igable rivers; and, nev- 
ertheless, Mr. Keith has confined his measm'ements to the said mile. The 
"Promoter Fiscal," if he had ■fished, could have rendered the claim of 
Mr. Keith void; but, as he did not ■nish to oppose Mr. Keith and liis com- 
panions, notwithstanding I pointed out these defects before the judge, 
he approves all that has been done in the denouncement proceedings. 
Assuredly, the Government, no-K' that they are ad\'ised through me of what 
has happened, will put matters right. Its intei'vention is indispensable 
and urgent. Without it, on* the other hand, the lease which the Secretary 
of State offers me would be, in reahty, iUusorj^, due to the action of the 
agents of the Government, and ■without my being able, bj' ■\'irtue of the 
contract wliich you propose to me, to make anj^ claim. 

With the idea of a vxodus rirendi 1 propose the following: 1st. The 
Government of Costa Rica concedes to McConnell permission to continue 
his work at the port of Gandoca and in the lower part of the valley of the 
Sixola, imtU the ratification or failure of ratification of the treaty of 
boundaries with Panama. This authorization includes the right to con- 
struct a railway or tramway from any point on the lands cultivated or which 
McConnell may cultivate to the port of Gandoca, and to build a pier at that 
port and to occupy the land necessary for a station, warehouses, offices, 
dweUing-house, etc. 

2nd. McConnell vnil recognize the sovereignty of Costa Rica pending 
the ratification of said treatj^ and will obey the laws of the RepubHc in 
those places. 

3d. The port of Gandoca shall be opened to international commerce 
and coasting trade within the period of two months. McConnell will pay 



106 

the necessary expenses which the Government of Costa Rica ma}' incur in 
consequence of the said concession and permission, including the custom- / 
house expenses and of the employees of the Government in Gandoca, which 
may be necessary by virtue of the occupation of McConnell, always pro- 
vided they do not exceed five hundred colones per month. However, 
]\IcConnell will construct the buildings necessary for the offices and ware- 
house of the Government of Gandoca, required by virtue of this agreement. 
McConnell will pay the duties of importation and exportation in force in 
the Republic. The material for the railway or tramway, pier, and for the 
custom-house buildings and said offices of the Govermnent, shall be ad- 
mitted free. Vessels consigned to McConnell shall be exempt from port 
dues. 

4th. McConnell shall at once have the right to recover the embargoed 
merchandise, to disembark the cargo which is now at Bocas del Drago in 
consequence of the opposition which the Costa-Rican authorities made to 
its disembarkation, and shall also have the right to raise and disembark 
the merchandise now sunk in the port of Gandoca, and he shall pay the 
customs duties according to the stipulation in the foregoing clause (3d) . 

5th. As McConnell has also plantations of bananas on the right bank of 
the Sixola, the Government will place no obstacle in the way of the free 
conveyance of the products of the right bank across the river Sixola; 
and of the conveyance to the same (right) bank from the left bank of 
IDrovisions, tools, utensils, etc., necessary for the works or the necessities 
of the people employed by McConnell on his plantations. 

6th. The Government of Costa Rica binds itself to oppose the denounce- 
ments under way or which may be made, which include the mile on the 
margin of the river on which the plantations of McConnell are situated or 
the maritime mile between Gandoca and the Sixola, these denouncements 
being inadmissible under the laws of Costa Rica; and this without preju- 
dice of the rights of McConnell to oppose such denouncements by virtue 
■of the present contract. 

With all consideration I subscribe myself 

Your very respectful servant, 

(Sig.) H. L. McConnell. 

(Sig.) RicARDO Jimenez, Attorney. 

-San Jose, April 17, 1905. 



107 

No. 638. 

Depart-Mext of State, 

Washington, May 12, 1905. 
William L. Meret, Esquire, etc., etc., etc., 
San Jose : 

Sir, — I have to acknowledge the receipt of your despatch Xo. 1037 
of the 23rd ultimo, reporting that :\Ir. H. L. McConnell, with ilr. 0. F. 
Bolder, his agent at Gadocan and Sixola, arrived in San Jose on March 
30 for the purpose of arranging, if possible, a modus vivendi with the 
Government of Costa Rica, by which he can prosecute his work of plant- 
ing in that section pending the approval of the treaty between Panama 
and Costa Rica, whereby said section is to become the territory of Panama. 
You also report the negotiations that took place between Mr. McConnell 
and the Costa-Rican Government since his arrival, and your efforts in 
his behalf. 

Inasmuch as your despatch fails to enclose a copy of the modus vivendi 
proposed by the Costa-Rican Government, the Department is unable 
to form any opinion on the question whether it could not be properly 
considered a modus vivendi, as stated in your note to Mr. Astua under 
date of Apiil 18 last. On the other hand, ^Ir. ^IcConnell's proposal, 
contained in enclosure No. 3 of your despatch, appears in some particu- 
lars to exceed the requirements of a modus vivendi, as, for example, clause 
No. 6, which reciuires the Costa-Rican Government to oppose the denounce- 
ments mentioned, on the alleged ground that they are inadmissible under 
the laws of Costa Rica. 

The Department does not wish that there be any misconception o f its 
attitude in favor of a modus vivendi, which is, that it shall not interfere 
■with or prejudice the rights of third parties. All conflicting claims of 
title are, at last, proper matters for the determination of the courts. The 
object of the modus vivendi should be to preserve the property of Mr. 
McConnell or of the corporation he represents, untU the boundary ques- 
tion shall have been settled hj the ratification of the treaty between Panama 
and Costa Rica, when the parties would have to resort to the courts of 
the State within whose jurisdiction the lands he for the hearing and de- 
cision of the title to the property in question. 

The foregoing observations are not intended in any waj^ as criticising 
your action, but rather to express more fully than has heretofore been 
done the Department's view as to the line of action you should pursue 
in facihtating the making of a modus vivendi between ^Ir. ilcConnell 



^ 



108 

and the Costa-Rican Government. You will, of course, avoid giving to 
the Costa-Rican Government the erroneous impression that the Depart- 
ment is in any way committed in support of Mr. McCormell's claims, its 
attitude, in fact, being simply favorable to the preservation, by means 
of a modus vivendi, of whatever property he may have, but without preju- 
dice to the legal rights of the Costa-Rican Government or of third parties. 

I am, Sir, 
Your obedient servant, 

Francis B. Loomis, 
Acting Secretary. 

No. 1043. 

Legation of the United States of America, 

San Jose, Costa Rica, May 7, 1905. 
!^ V^' To THE Honorable Francis B. Loomis, 

1 ^" Acting Secretary of State, Wasliington, D.C.: 

V" Sir, — Respectfully referring to my No. 1037 of April 23d, I beg to report 

that I have thus far been unable to accomplish anything at the Foreign 
Office here in effectually aiding Mr. McCoimell. Two days since I received 
from the Minister of Foreign Relations a note enclosing a formal protest 
from Mr. Minor C. Keith and other American and Costa-Rican citizens 
against the pretensions of Mr. McCormell in connection with lands in the 
Sixola Valley, to which they claim prior title by denouncement filed in 
Court, and now pending, after survey of said lands. To this I replied 
yesterday, requesting that this Legation be furnished with copies of de- 
nouncement proceedings and Mr. McConnell's protest thereon, also copy 
of the denouncement law and outline sketch of the lands. The protest 
of Keith et al. is an impediment which I apprehend may defeat any effort 
on my part to obtain for Mr. McComiell a modus vivendi permitting 
liim to go on with his work at the Sixola Valley. He labors under the 
evident disadvantage of having filed at the Department of State a heavy 
claim for damages and loss of prospective profits through the interfer- 
ence of the Costa-Rican Government with his operations at Sixola and 
Port Gadocan. TMs and the defence of Minister Calvo has been pubUshed 
in New York Tribune of January 15th, 1905, and probably in other 
newspapers, copies of wliich have reached here, and doubtless Mr. Calvo 
has also fuUy informed Ms Govermnent. 

On 3d inst. Mr. McConneU presented to the Minister of Foreign Re- 
lations another proposition for a fitftj^ years' concession, to which no reply 



109 

has been thus far made. This was done without my knowledge, although 

he gave me a copy thereof on 5th inst. I have the impression that it 

will be declined by the Government, but its presentation after I had, with 

the concurrence of his attorney, dechned the other concession for six 

years, proposed by the Govermnent, will not aid my efforts for a modus 

Vivendi. I forward herewith copy and translation of the protest of 

Minor C. Keith et al. addressed to the Government (Enclosure No. 1) 

and copy of Mr. Keith's letter to me dated May 4th (Enclosure No. 2), 

asking that the title of the Sixola lands be determined by the Costa Rica 

Courts, to which he and his associates have appealed. It seems now 

to be my duty to request, and I shall await, your additional instructions 

before taking further action in the case, unless meanwhile my request 

for a modus vivendi is conceded on conditions acceptable to Mr. Mc- 

•Connell. With assurances of my highest consideration, I beg to remain, Sir, 

Your most obedient servant, 

William Lawrence Merry, 

American Minister. 
Enclosures: 

1. Keith's protest. 

2. Keith to Merry. 



No. 1043. 

[Translation. Enclosure No. 1.] 

To THE Secretary of State in the Office of Public Works, 
National Palace : 

W^e, Minor C. Keith, John M. Keith, Edgar J. Hitchcock, Mariano 
Ouardia, David Andrew Johnston, and Fehx Echeverria, come before 
you and respectfully submit the following: — 

Relying imphcitly in the stabiht}- of the National Institutions and the 
protection afforded by the existing laws, we obtained, together with sev- 
eral other parties, the rights of denouncers to a piece of Government 
Land situated on the Atlantic Coast along the left bank of the Sixaola 
River, with the firm intention of acquiring permanent titles to the land 
to establish on same an agricultural company on a large scale. 

Pursuant with this proposition, we have pushed forward the work of 



no 

proving up the denouncement, until we now actually have the land sur- 
veyed and measured (which includes 6,000 hectares), and placed in such 
condition that it can be put up at Auction. 

In tliis condition of affairs we are surprised to hear that Mr. Herbert 
Lee McConnell has presented to the Supreme Government a petition 
praying for a concession to exploit certain lands in which are included ours. 

We must call to your attention the fact that the said Mr. McConnell 
has already undertaken to frustrate om- legitimate aspirations by oppos- 
ing our denouncement before the Court of Contencioso Administrativo. 
But his opposition was so uncalled for that the judge threw it out as a. 
whole, and ordered that the denouncement be continued as set forth 
in resolution which to-day cannot be attacked, as it has passed the proper 
authority as a thing judged. 

There is no doubt but what, in view of his failure before the Courts, 
and not being able to disturb us further in legal form, Mr. McConnell has 
gone to the Government, soliciting a concession which will serve as a basis 
to make a laughing-stock, although but for a moment (which in the case 
in question is of sufficient import), of that which has been definitely de- 
cided by the Courts and the existing laws of Costa Rica, and to violate 
unquestionable rights. 

For these reasons and upon advice of what is happening, although we 
do not know the details of Mr. McConnell's petitions, we must respectfully 
call the attention of the Supreme Government to the following : — 

The lands denounced by us caimot be the object of any special conces- 
sion, because under the protection of existing laws we have acquired,, 
among many others, the right to purchase them at PubUc Auction, and 
stand ready to make good that right at the proper moment. Further, it 
would be unjust to accede to the petition of Mr. McConnell, even though 
it were to be done reserving the rights of third parties, as that would be 
equivalent to placing it under such favorable conditions at the moment 
of auction that it would be beyond all control and to the prejudice of 
other bidders, more especially so to ourselves, and without the Exchequer 
deriving the most insignificant advantage. 

If the Supreme Government, for any reason, desires that the transfer 
or adjudication of the lands under discussion be not made under the form 
of denouncement, and to which they are at present subject, we have no 
objection, if it does not prejudice our rights, to enter into negotiations- 
with this object in view. 

We beg of you that at the time of taking under consideration the propo- 



Ill 

sition which Mr. McConnell may have made relative to this subject you 
■will please bear in mind what we have herein set forth. 
With all due considerations, we are, dear sir, 



(Signed) 



D. A. Johnston. 
Felix Eoheverhia. 
Mariano Guardia. 

E. J. Hitchcock. 



■San Jose, Costa Rica, April 6th, 1905. 



M. C. Keith, ] 

per John M. Keith. 
John M. Keith, 

For the presentation. 

RICARDO PACHECO, 

Attorney. 



No. 1043. 



J 



[Enclosure No. 2.] 



San Jose, Costa Rica, May 4, 1905. 

His Excellency the Honorable William L. Merry, 
Envoy Extraordinary and Minister Plenipotentiary 
of the United States, San Jose. 

Sir,— As Mr. Herbert Lee McConnell has soUcited from the Govern- 
ment of Costa Rica a concession of lands on the North bank of the Sixola 
Eiver, under the jmisdiction of this Republic, we beg to call your atten- 
tion to the fact that we, the undersigned, hold legal rights over a large 
part of these lands, dating from the 1st March, 1900, on which Mr. Mc- 
'Connell and his associates have squatted. 

Enclosed herewith please find copy of Protest presented by us to the 
'Costa Rica Government, under date of the 6th ultimo. 

We are informed that Mr. McConnell and his associates are supported 
in their pretensions by you, in your official capacity, under instructions 
from our Government. 

As American citizens, we bring this matter to your attention, feehng 
■confident that it is neither the intention nor the wish of our Government 
to intervene in behalf of one citizen to the prejudice of the interest of 



4 



112 

another in a matter in which the Coui'ts of this RepubHc are fully qualified 
to act. 
We have the honor to remain, 

Your Excellency's obedient servants, 

John M. Keith for self and (Sg.) Minok C. Keith. 

in representation of minors, John M. Keith. 

Emily M. Keith. Edgar J. Hitchcock. 

Henry A. Keith. 
JosALiE A. Keith. 
John M. Keith, Jr. 

(Others interested named in protest.) 



No. 1050. 

Legation of the United States of America, 

San Jose, Costa Rica, May 21, 1905. 

To THE Honorable Francis B. Loomis, 

Acting Secretary of State, Washington, D.C.: 

Sir,—1 have the honor to forward herewith (Enclosure No. 1) a conmiu- 
nication from Mr. John M. Keith, an American citizen resident here, rep- 
resenting the poUtical interests of the United Fruit Company, an American 
corporation, addressed to the Minister of Pubhc Works of Costa Rica, 
asserting that Mr. H. L. McConneU, an American citizen has violated 
his contract with said Company, as therein set forth, for which it has en- 
tered suit against him in the United States Courts. The protest of Mr. 
Minor C. Keith et al. against the action of Mr. McCoimeU was forwarded 
to you with my No. 104.3 of May 7th, and I am since informed by Mr. 
John M. Keith that his Company is now also preparing complaint against 
McConneU et al. to be presented in a Costa-Rican Court of Law with the 
purpose of forcing McConneU to abandon his work in the Lower Sixola 
VaUey. Under these circumstances, and having in view Diplomatic In- 
stmctions, page 67, Section 173, which distinctly state that diplomatic 
representatives "should take no part in Utigation between citizens," it 
seems to me that my ofhcial action in connection with the case is no longer 
proper. There has not yet been time to receive reply to my No. 1043 of 
7th inst., and meanwhUe I have aided Mr. McConneU as best I could to 
obtain a modus vivendi, considering your former instructions temporarily 



113 

in force. I had a long interview yesterday p.m. with Minister Astua, at 
which were present Mr. McConnell and his attorney, Mr. Ricardo Jimenez, 
my purpose being to obtain some amendments to the modus vivendi which 
has now been offered Mr. McConnell. I succeeded in obtaining the Min- 
ister's promise of recommendation to the President, and it is possible that 
an arrangement may yet be reached next week. Meanwhile I hope to 
receive some further instruction from you, and it is possible that condi- 
tions may present themselves deciding me to cable you, but this I shall 
avoid if possible, the Hmits of a cablegram being, in such a case, generally 
unsatisfactory. I have endeavored to carry out your instruction in this 
matter to the best of my abiUty, and have confidence that, when you are 
informed of the htigation going on between these two companies of Ameri- 
can citizens, in both foreign and United States Courts, the propriety of 
my withdrawing from even informal diplomatic action will be apparent. 
With assurances of my liighest consideration, I beg to remain. Sir, 
Your most obedient servant, 

William Lawrence Merry, 

American Minister. 
Enclosure: 

1 . Keith to Minister of Public Worlds. 



No. 1050. 

[Translation. Enclosure No. 1.] 

San Jose, Costa Rica, 18th May, 1905. 
The Minister op Public Works, 
National Palace: 

<SiV,— With reference to the Memorial which I, together with several 
other parties have presented to you, and in which we have opposed the 
petition of Mr. H. L. McConnell that a concession of lands be made him, 
I have the honor to communicate to you the following: — 

In virtue of a contract entered into between Mr. Preston, President of 
the United Fruit Company and Mr.. McConnell, of which I have the pleas- 
ure to forward you a copy, this gentleman cannot enter into the business 
of the cultivation and sale of tropical fmits. 

Consequently, the works which he may have established or may desire 
to establish are in violation of this formal agreement. 

For this infringement, suit has already been commenced against him in 



114 ' 

the American Courts, as you will see by the copy of the claim enclosed 
herein. 

As I had the pleasure to inform you recently, in view of our efforts in 
this Capital before the American Minister, to the end that he should not 
support the cause of Mr. McComiell, the American Minister has addressed 
himself to the State Department, Washington, requesting new instruc- 
tions, and, according to a cablegram which I have received from New York, 
it is probable that that Department vdVL not insist on the carrjdng out of 
its instructions to support or assist the project of Mr. McConnell. 
With highest consideration, I beg to remain 
Your obedient servant, 

(Sgd) John M. Keith, 



No. 639. 

Department of State, 

Washington, May 27, 1905. 

William L. Mehry, Esquire, etc., etc., etc., 
San Jose : 

Sir, — I have to acknowledge the receipt of your despatch No. 1043 of 
the 7th instant, reporting that thus far you have been unable to accom- 
phsh anything at the Costa-Rican Foreign OfSce in effectually aiding Mr. 
Herbert L. McConnell to obtain a modus vivendi permitting him to go on- 
with his work in the Sixola Valley. 

The contest between Mr. McConnell and others over the title to lands 
along the Sixola River is one that belongs to the courts having jurisdic- 
tion. The Department cannot undertake to try to settle their conflicting 
claims of title, and the parties will have to resort to their legal remedies. 
The Department only contemplated a modus vivendi until the question of 
disputed sovereignty should be finally settled between the Governments 
of Costa Rica and Panama. Its attitude in this respect has been fully 
set forth in previous instructions. 

I am, Sir, 

Your obedient servant, 

F. B. LooMis, 
Acting Secretary. 



Vr, 



^' 



115 
No. 1051. 



vl: 



Legation of the United States of America, 
San Jose, Costa Rica, May 28, 1905. 
The Honorable Francis B. Loomis, 

Acting Secretarj' of State, Washington, D.C. : 

Sir,— In further reply to your No. 638 of May 12th, I have the honor to 
report that, considering your orders effective until other instructions are 
received, I have continued my efforts to arrange a modus vivendi with the 
Costa Rica Government for Mr. H. L. McConnell. 

Mr. McConnell to-day desired me to cable you, requesting reply by cable, 
in regard to his right to hereafter enter at the Department a claim for in- 
demnity against the Costa Rica Government in case he withdraws the claim 
already presented. Having in view the tenor of your cablegram of May 
22d, and awaiting instructions by mail via New Orleans, due in two or 
three days, I did not feel at hberty to comply with the request at present. 
With assurances of my highest consideration, I beg to remain, Sir, 
Your most obedient servant, 

William Lawrence Merry, 

American Minister. 
Enclosuhes : 

No. 1. Merry to Minister Astua. 

No. 2. Minister Astua's last proposition to McConnell. 

No! 3. Reply thereto of Mr. Jimenez, McConnell's attorney. 

No. 1051. 

[Enclosure No. 1.] 

Mat 26, 1905. 
To His Excellency Senor Don Jose Astua Aguilar, 
Minister of Foreign Relations, etc., etc., 
Republic of Costa Rica, San Jose. 

Esteemed Sir,— On the 23d inst. I had the honor to hand Your Excel- 
lency a copy of an excerpt and translation from a despatch dated May 
12th, from the Department of State at Washington, distinctly disclaiming 
any desire to interfere with or to prejudice the rights of tliird parties in 
connection with the arrangement of a modiis vivendi with Mr. H. L. Mc- 
Connell. My purpose in communicating this to Your Excellency was to 
facihtate the proposed agreement with Mr. McConnell, the rights of third 
parties, which must be decided by Costa Rica or Panama Courts, being one 
point upon which Your Excellency was insistent. Another point upon 



116 

wliich Your Excellency was insistent is that Mr. McConnell shall with- 
draw his claim for damages now on file at Washington. As I have stated 
to Your Excellency, no such claim is, in fact, presented to Your Excel- 
lency's Government. It will be plain to you that any citizen can address 
the Government of the United States in his own behalf, but the presenta- 
tion of a claim does not give it value worthy of notice by a foreign Gov- 
ernment unless it be communicated and supported in due form through 
diplomatic channel. I beg to respectfully call Your Excellency's atten- 
tion to my note addressed you on February 23d, which distinctly states 
the Umited purpose of the modus vivendi, the intent of which is to avoid 
additional losses. 

The exclusive jurisdiction of Costa Rica Tribunals in this matter, as 
affecting the rights of third parties in interest, is, as above stated, freely 
admitted by my Government, and thus the question does not appear to 
be in the present case an important one. If Mr. McConnell is wilUng to 
waive the right of diplomatic intervention in the future, I have no author- 
ity to prevent his doing so, but it is due to Your Excellency to have it 
distinctly understood that my Govermnent must decline to be bound 
by such waiver; the right of intervention, as is conceded by Your Excel- 
lency, appertaining to the Government and not to its citizen or subject. 
These objections removed, I do not see what impediment remains to grant- 
ing Mr. McConnelU a modus vivendi which -nail be to the mutual advantage 
of all parties in interest, subsequent questions as affecting tliird parties 
being freely accorded submission to Costa Rica Tribunals, vnth which my 
Government disclaims any desire or right to interfere. 

Mr. McConnell, having now awaited here the pleasm-e of Your Excellency's 
Government in this matter nearly two months, is anxious to return to the 
United States and equally desirous to meet Your Excellency in any mutually 
acceptable agreement. By your requirements Mr. McConnell must pay 
duties upon railway supplies from which others are exempt, and he is not 
permitted to complete his planting as he has arranged. These are onerous 
requirements in view of the payment of forty thousand (40,000) colones, 
indicating his disposition to concede all requirements so far as appears 
admissible with due regard to the interests he represents. 

Be pleased, Mr. Minister, to receive the assurance of my most distinguished 
consideration, and permit me to subscribe myself Your Excellency's 
Most obedient servant, 

(s.) William Lawrence Merry, 
E.E.andM.P.U.S.A. 



117 

No. 1051 

[Translation. Enclosure No. 2.] 

" Modus Vivendi " proposed by Costa Rica Government. 

May 2, 1905. 

Jose Astua Aguilar, Secretary of State in the Department of Fomento, 
with sufficient authority from the President of the Republic, on one hand, 
and Herbert Lee McConnell Scott, who in this document will also be desig- 
nated the " enipresario " on the other, set forth the following: — 

The exponent McConnell states the following facts: — 

1. That in 1903 he occupied, without the consent or knowledge of this 
Government, a considerable tract of land on the left bank of the Sixola 
River, between Cuabre and Gandoka, beUeving that this land was a part 
of the Panama territory. 

That he cultivated with bananas some 15,000 hectares of that land and 
at the same time he commenced to build a shed and two small houses on 
the coast for the service of his farm, and to build a tramway for the purpose 
of convejdng fruit to the port; 

And that, moreover, he sent vessels to Gandoka, with cargoes, notwith- 
standing the fact that that was not a port open to trade, and imported 
through that port building materials, provisions, and other articles to be 
used on his plantation. 

2. That, when this Government obtained knowledge in the middle of the 
year 1904 of what was happening on these lands, they sent there a Fiscal 
force, which force seized, according to the law, the imported articles, and 
gave the order to stop the maritime traffic through the said port, and to 
discontinue the cultivation and to abstain from any act of ownership or 
possession of the occupied area; and for that reason the exponent did ask 
the intervention of the Government of the U.S.A., and filed before that 
Government a claim for indemnity against this Government, which 
claim is now pending. 

3. That afterwards he was convinced that the Costa-Rican authorities 
had acted correctly, because the zone in which the farm and its annexes 
are located has belonged and belongs to the jm'isdiction and sovereignty 
of Costa Rica by reason of the iiti possidetis which has been in existence 
from time immemorial with Colombia regarding the boundary line before 
the separation of Panama, and which uti possidetis has been recognized 
and respected by the latter Republic in express and undoubted terms 
after its declaration of independence, and in consequence the exponent 



118 

decided to solicit from this Department permission to continue the culti- 
vation until the Guardia-Pacheco Treaty shall have been ratified or re- 
jected, and the exponent asked also permission to export meanwhile the 
fruit from his farm, and to continue for this purpose the construction of the 
tramway to be used for the conveyance of the fruit, and to build a pier at 
Gandoka; and, in fact, the exponent made the said petition thus, abandoning: 
the diplomatic recourse he had adopted in order to obtain protection for 
the interests of his banana business. 

4. That the Costa-Rican Government has heard this petition and has 
declared that the exponent has no right whatever to the said lands, that 
they cannot recognize, therefore, any right whatever derived from the fact 
of his possession, because such possession has its source in the ignoring of 
the sovereignty of Costa Rica in that part of its territory, but that the 
Government, to avoid as far as possible the losses attendant on the abandon- 
ing of the plantation and its annexes, while the exponent is seeking to obtain 
in legal manner, from whomever it may concern, the ownership or lease of 
the occupied area, is willing to grant him the permission aforesaid, it being 
fully understood that the said permission does not improve in any way 
the actual situation of the enterprise of McConnell, neither in respect to 
the absolute ownership of Costa Rica in those lands nor in respect to the 
titles to these lands which may be vested in private persons, nor in respect 
to the rights of third parties derived from denouncements already made, 
because the said permission only means that the State declares that they 
will not, dm'ing the said term, exercise against McConnell their right of 
excluding him from these lands, and means, too, the permission given to- 
him to make use of the fruits of the plantation. 

The Secretary declares that the position of the Government with relatioa 
to the petition of Mr. McConnell is that which has been stated, and both 
parties declare that, in order to grant to Mr. McConnell the permission the 
character, value, and hmitations of which have been stated, the following, 
agreement has been made : — 

Subject to the limitations to be specified below, the Government concedes : 



a. That Mr. McConnell may keep and exploit until May 31st of 1907 
the banana fields planted by hhn in the lands situated on the left bank of 
the Sixola River, between Coabre and Gandoka, or, what is the same thing, 
in the region to be transferred to Panama, should the Guardia-Pacheco- 
Treaty be ratified. 



119 

h. That during the time he may continue the construction of the trani- 
■way already commenced, and he may use that tramway for the conveyance 
•of his fruit to Gandoka. 

c. That he may make at that port all the works he likes in order to facili- 
tate the operations of loading and unloading of the vessels taken there by 
order of Mr. McConnell, for the purpose of landing there goods to be used 
at the farm or to ship fruit going abroad. 

d. That he may introduce, subject to the conditions mentioned below, 
the materials for construction and the other articles required by the said 
•enterprise. 

e. And, finally, that he may export from Gandoka the fruit produced 
t)y the banana fields referred to. 

II. 

The Government, during the 30 days following the ratification of this 
contract, by Congress, wiU fix the extension of the said farm b)" means of 
an official commission appointed by them. Only the pubhc area actually 
cultivated with bananas shall be considered as lands of the plantation, be- 
cause the permission granted by this agreement does not include those 
lands simply cleared of underbrushes and trees, nor does it authorize 
McConnell to increase the cultivations. 

Butj whatever may be the result, it is agreed that the area of the said 
cultivations shall not exceed 15,000 hectares. 

The fees of the commission are to be borne by McConnell, and are now 
fixed at the smn of $1,500, to be paid into the Treasury as soon as the 
members of the commission are appointed. 

III. 

The said concession should be considered as a simple permission granted 
lay the State in favor of the enterprise of McConnell on the conditions 
^stated. In order to establish the special conception of that peiTnission in 
this agreement, there are to be borne in mind the following observations : 

a. If it is true that according to this agreement McConnell is allowed to 
keep the cultivations and to take the fruits, that grant does not imply any 
lease of the respective land, but a promise of the Government by which it 
will abstain exercising the right of exclusion vested now in the Government, 
and which right may be exercised at the end of the said term of this con- 
tract or when this concession is rescinded or invalidated according to the 
terms of this contract. 



120 

b. This concession being ended for any of the said reasons, there will 
remain the defects of the legal situation of McConnell in respect to his 
using of the said area, occupied by him without any good title, — that is to 
say, as possessor; and therefore this concession cannot afterwards be put 
forward in any way as a basis for claiming from this Government the 
acquisition of any right in the sense of owner or in any other sense which, 
could confer upon him the right of use or usufruct of the said lands. 

c. This concession does not afTect the rights of third persons, owners or 
legal possessors of the said lands, and does not prejudice in any way the 
pending denouncements relating to these same lands. 

IV. 

This concession shall be considered at any moment and cancelled in 
every respect, whenever any of the following events shall transpire: — 

1. The ratification of the Guardia-Pacheco Treaty signed at Panama. 

2. The adjudication of said lands to third parties bj' reason of pending 
documents. 

3. If McConnell should violate any of his obhgations. 

4. Should McConnell or any one of his employees engage in smuggling. 

V. 

At the expiration of this concession stipulated in clause 1, or if the per- 
mission or concession should be cancelled by reason of any one of the reasons 
stated in clause 4, McConnell shall be forced to abandon totally the lands 
to which this concession refers, and at the same time the permission re- 
lating to the traffic of importation and exportation by Gandoka shall cease, 
it being understood that then McConnell will not be entitled to any in- 
demnization whatever. 

VI. 

McConnell shall pay to the Goverimient the sum of $40,000 as the equiva- 
lent of the values of the custom-house duties, including the wharfage 
and theatre tax on the machinerj^ and material of the tramway and pier 
already introduced, or to be introduced during the term of the aforesaid 
permission. 

The said sum shall be paid within 15 days followdng the final approval 
of this agreement. 

Other articles introduced shall at the time of introduction pay the duties 



121 

fixed by the tariff, because the said sum of $40,000 only covers the duties 
on the materials specified. 

VII. 

No introduction whatever of articles for the enterprise shall be allowed 
without the previous registration and the license of the custom-house of 
Limon. For that purpose the vessel carrjang cargo for McCoimell is to 
arrive at that port, and, when the said registration and permit shall be 
obtained, the cargo may be conveyed, in the same vessel, to Gandoka, in 
which port the landing of the cargo shall be inspected by the custom-house 
employees commissioned for that purpose. Nothing maj' be landed without 
first obtaining the authorization of the said custom-house; and this custom- 
house, if the objects to be landed are not construction materials or ma- 
chinery for tramway or pier, cannot consent to the landing without the 
registration and payment of the corresponding duties. 

The vessels arriving at Gandoka with the object of transporting the 
bananas of McConnell shall sail from that port with the clearance given 
by the custom-house alcalde, who is authorized to issue in each case the 
corresponding clearance. Without the registration and permission to land, 
the act of landing goods is to be considered as snmgghng. 

VIII. 

In order to inspect the landing of goods at Gandoka and avoid smuggling, 
and in order to issue clearances to the vessels which may go there to ship 
bananas, an office shaU be established there, consisting of an alcalde and 
two guards, whose lodgings and salaries shall be paid b}' McConneU. 

The said salaries are fixed at the sum of $9,000 during the term of the 
present concession, and this siun is to be paid into the Treasury in four 
instalments, the first one in the first month of the said term, the second 
in October of this year, the third next April, and the last in October, 1906. 

IX. 

It is agreed that, notwithstanding the rescission of this permission for 
any of the reasons expressed in the clause or for any other reason not 
foreseen in that clause, McConneU cannot ask at any time repayment of 
the sums he is bound to pay, according to the term of this document, into 
the Treasury; and it is also agreed that the said resolution shaU not give 
him the right to demand of the State any indemnization whatever, not- 
withstanding the loss or damage that fact might inflict upon McConnell. 



122 



X. 

Mr. McConnell declares that, although the pernaission granted by this 
docmnent relates only to pu))lic lands, he assumes any responsibility in- 
curred by the Government by reason of this concession, should there be 
taken or have been taken lands already appropriated or possessed by others; 
and he declares that from this moment he abandons and annuls the claims 
he estabHshed before the U.S.A. against the Costa Rica Government, to 
which this document at the beginning relates. 

XI. 

This concession is to be submitted to the Congress for its approval, and 
cannot be transferred to any one by any title without the concession of the 
Govermnent. 

XII. 

Any question that may arise between the parties in regard to agreement 
and its consequences comes exclusively under the jurisdiction of the courts 
of this Republic, and is to be decided according to its laws, mthout any 
possible recourse to diplomatic intervention. 

Submitted May 22d, 1905. 



No. 1051. 

[Translation. Enclosure No. 3.] 

Reply of McConnell to Minister Astua. 

May 25, 1905. 
Mr. Secretary of State in the Despatch of Public Works: 

Sir, — Memorandum of Observations presented by Herbert L. McConnell 
to your proposed agreement. 

1. Clause 1st (included to and clause 5th). 

According to the fii'st clause the concession -svill last imtil May, 1907, 
and according to clause 6, terminating the concession, McConnell should 
immediately evacuate the lands. Tliis means that cultivation, railway, 
wharf, houses, and other improvements McConnell shall turn over with- 
out recovering the value of all this. 

McConnell has to pay C40,000 (forty thousand colones), which is stated 



123 

to be the equivalent of all the customs duties on materials of raUway 
and wharf. On this it is to be remarked that, according to the law of 
November 2nd, 1900, all the railway materials will enter free of duties 
for ten years, for the use of banana farms; and, although it is certain that 
this law alludes to the farms proximate to the Atlantic railway, tliis allu- 
sion does not signify that the Legislature desired to exclude from the 
benefits of the law the Talamanca region or the vicinity of the river San 
Juan, for example. The clear purpose of the law was to encourage the 
production of bananas in the Republic. Talamanca, according to the 
opinion of the Government, is part of Costa Rica; and for bananas the 
materials of the railway are necessary in this case, and there is no reason, 
then, for estabHshing a gross inequality contrary to Talamanca. If this 
customs question had been presented in ordinarj' cases, it does not appear 
that it would have resulted, unless appHcable to the principle of the equal- 
ity of the laws. For McConnell, consequently, the C40,000 (forty thou- 
sand colones) and the C9,000 (nine thousand colones) for salaries of the 
employees (clause 8) simply signify the price of all this arrangement, 
which he is disposed to pay, notwithstanding the increase which it imports. 

But, if he has to see himself exposed at the end of two years to the aban- 
donment, for the benefit of the Government, of his plantations, works of 
all classes, which signifies the loss of C49,000 (forty-nine thousand colones), 
and also the value of his improvements, it is clear that this pretended 
agreement, instead of serving to save his actual property, constitutes 
a fuiancial operation entirely ruinous. It is not worth asserting that 
the difficulty of the Hmits ■with Panama wiU be arranged in two years. 
This may and may not occur. How long were they discussing the ques- 
tion between Costa Rica and Colombia? How much time has been occu- 
pied in negotiating a treaty between Costa Rica and Panama? Two years 
pass very rapidly; and, if McConnell signs the agreement which is proposed, 
he will probably be in the two years in greater difficulties than to-day. 

The Government of Costa Rica promised a modus vivendi; and, 
since it has abandoned this base, there have arisen inextricable diffi- 
culties. The case of McConnell depends entirely upon the uncertainty 
about hmits of the two neighboring Republics. There is no way of sepa- 
rating the two tilings. If Costa Rica offered a modus vivendi, it is be- 
cause it understands that, while the question of hmits is not settled, there 
is no possibihty of celebrating a permanent agreement, nor of defining 
completely and at once this difficulty. Consequently, the first clause 
of the project which fixes a duration of two years is against the conception 



124 

of a modus vivendi. McConnell proposes that the said clause shall 
read thus: (a) "in which the manager consei^ves and develops, by means 
of the company of which he forms a part, the lands which he has culti- 
vated in bananas or prepared for said cultivation on the left bank of the 
Sixola between Cuabre and Gandoka or in the region which, in case of 
ratification of the Guardia-Pacheco treaty of limits signed at Panama 
on March 6th, 1905, shall pass to be the territory of the Isthmus, and will 
conserve this possession until the question of limit shall have been fixed 
by the ratification of said treaty." 

In regard to clause 5, by the method of a modus vivendi it will have 
to disappear. There is no reason why McConnell has to lose his culti- 
vation and improvements. 

2. Preamble of the Astiia proposal. 

The declarations contained in this preamble are entirelj' non-conducent 
for the purpose of a modus vivendi, and are in contradiction with the 
idea of such a modus vivendi. If the region discussed is to pass, as the 
Government itself tliinks, to Panama, the admissions which McConnell 
pretends to make may prejudice his rights before the Panama authori- 
ties, since these pretend that he has known by this document that he had 
entered to possess the said lands without any title or right. All the dec- 
larations that a person makes should be always and in all parts consistent 
in themselves. McConnell cannot make recognition of acts in Costa 
Rica, and make others in Panama in contradiction -ndth those he made 
in Costa Rica or in Wasliington. The preamble, therefore, it is better 
to omit. 

3. Conjlid of right of third parties. 

If the lands occupied by McConnell have to be decided if they remain 
in the territory of Costa Rica, nothing is more natural than that it shall be 
the tribunals which have to decide aU the questions between McConnell 
and third parties regarding the merit of their respective titles. But, 
wMle tliis international question is not decided, McConneU carmot admit 
that the modus vivendi terminates to his damage if the tribunals ad- 
judicate the lands by \'irtue of denunciations pending in the tribunals 
of Costa Rica, and, above all, cannot admit that he has to recognize, as 
is impUed in the proposed (clause 3, incision 0), (clause 4, incision 2), and 
(clause 10), the validity of these denouncements wliich are null even from 
the point of view of the laws of Costa Rica. With relation to tliis point 
McConnell proposes the follo^ring, which says: — 

"The tribunals of the Country which have finally to adjust the region 



125 

in which are the plantations of McComiell shall be those competent to 
hear and decide the questions wliich exist with respect to the titles over 
said lands." 

5. Cancellation of the agreement by reason of contraband. 

The incision 4 of the fourth clause is inadmissible in that it makes Mc- 
'Connell responsible for smugghng by liis employees or servants. If this 
contraband was effected through his orders, or with the consent of Mc- 
ConneU or with his notice, it is very reasonable that he is responsible 
for the crime. But, outside of these cases, McConnell cannot be respon- 
sible for such smuggling, and less when the Government maintains at 
Gandoka three employees paid by McConnell, with the obhgation of 
preventing smuggling. McCoimell can only promise that he will do all 
in his power to protect the Government from smuggling. 

5. The Government does not return amounts received in any case. 

The 9th clause says that the Government will not return an}^ amount, 
even in case the concession terminates by any cause not foreseen in the 
contract. Understood as are -nith aU minuteness all the motives of the 
agreement or cancellation, no other motive can be seen wliich can refer 
to clause 9. The phrase "or for any other in it not foreseen" is so vague 
that it is inadmissible. 

6. Exemption from import duties. 

The 6th clause only mentions macliinery and material of construc- 
tion of the railway and wharf. It should have mentioned also all the 
materials for constructing the edifices which the enterprise of McConnell 
needs in his plantations or in Gandoka. 

7. Renouncement of diplomatic action. 

McConnell does not think that this arrangement should cause any in- 
ternational reclamation. He has confidence in the equity of the Govern- 
ment of Costa Rica. But he carmot see the motive for wliich he has to 
place liimself in worse condition than foreigners ordinarily occupy who 
have business in Costa Rica. On the other hand, as the same Mr. Sec- 
retary has recognized, the right of intervention does not belong to the citi-^ 
zen, but to his government. For the same reason the renouncement of 
McConnell is without value because he cannot dispose of that which is 
the exclusive right of the United, States. 
[ - 8. Details of composition. 

\ ■ The project, in alluding to the arrangement, always uses the form "of 
tolerance or license" conceded to McConnell. It would be better to use 
another word in accord with the spirit of this arrangement, because, if 



126 

the Government thinks the agreement a tolerance, McConnell does not 
so consider it. 

9. Renouncement of right to da7nages and losses. 

McConnell is not disposed to renounce the discussion of the point, if 
the Government of Costa Rica is obUged to indemnify the damages and 
losses which it has caused by the impediment which, since the past year, 
it has placed against his forwarding the M^orks of his plantation and rail- 
way. This subject should be outside the present agreement. With all 
respect he subscribes himself attentive and obedient servant. 

(Signed) H. L. McConnell. 
San Jose, May 25th, 1905. 



No. 1053. 



Legation of the United States of America, 

San ,Jose, Costa Rica, June 4th, 1905. 



To THE Honorable Francis B. Loomis, 

Acting Secretary of State, Washington, D.C. : 

Sir, — I have the honor to forward herewith (Enclosure No. 1) copy 
and translation of a letter dated yesterday from Mr. Ricardo Jimenez, 
attorney for Mr. H. L. xVIcCoimell, addressed to the latter, stating the 
unfavorable result of their last interview yesterday noon with Minister 
Astua. At my last conference mth Minister Astua on May 26th, when I 
was accompanied by Mr. McConnell, it appeared probable that we could 
arrange a modus vivendi, as explained in my No. 1051 of May 28th. 
But the enclosed memorandum by Mr. Jimenez of the interview they 
had with him yesterday has convinced Mr. McConnell that it is impossi- 
ble to meet the requirements of the Costa Rica Government with due 
regard to his own interests. It seems to me that, if it were intended to 
make an arrangement with Mr. McCoimell, it could have been done be- 
fore this; but the parties appear unable to do this, notwithstanding my 
active intercession. Under these circumstances, Mr. McCoimell is m-gent 
that I shall cable you for instructions, wliich I am loath to do owing to 
your cablegram of May 22d, and for the reason that I should much 
prefer receiving your reply to my No. 1043 of May 7th which I 
await. Having been here two months, he considers the case urgent, 
and, desiring to avoid even the appearance of any disregard of liis inter- 
ests, I may decide to cable you briefly within two days, should it still 



127 

appear that under my present instructions I cannot obtain the modus 
Vivendi which you desire for Mr. McConnell. 
With assurances of my highest consideration, I beg to remain, Sir, 
Your most obedient servant, 

William Lawrence Merry. 
Enclosure : 

1. Jimenez to McConnell. 



No. 1053. 

[Translation. Enclosure No. 1.] 

San Jose, June 3d, 1905. 
Mr. Herbert L. McConnell, 
Present. 

Dear Sir, — To the end that you may preserve constancy of the interview 
which we have just had with Minister Astua, I pass to record briefly the 
declarations made by Mr. Astua : — 

1. The Minister commenced by manifesting that the claims formulated 
by you in your last proposal he beheves present obstacles which make im- 
possible all arrangement, even if you consent to modify them. 

2. Mr. Astua said that the President insisted in not extending the land 
that jrou solicited, and, although the President has not manifested what 
would be the maximum that he was disposed to concede, Mr. Astua believes 
that he could not obtain from the President the extension to two thousand 
hectares. 

3. Mr. Astua repeated that the President would not consent to the change 
of the clauses of the last memorandum or proposition of the Government, 
referring to the rights that tliird parties might have in the lands which are 
the object of these negotiations. In other terms, the Government insists 
that the Tribunals of Costa Rica shall decide the questions without await- 
ing the definite arrangement between Costa Rica and Panama. 

4. Mr. Astua declares that the arrangement never could remain more 
than ten years, even although at the end of this term the said question (of 
sovereignty) should not be decided. 

5. Mr. Astua also declared that, the arrangement completed for any 
reason, you ought to vacate and tm'u over the lands in conformity with 
what is said in the memorandum named last handed you by the same 
Mr. Astua. 



128 

6. He stated, finally, that the President insisted that the forty thousand 
colones would cover exclusively the customs duties, referring to materials 
of construction, and not to duties on provisions or other articles. 
I am ready to swear to the exactness of the contents of the present letter. 
Your attentive and obedient servant, 

(s.) RiCARDO Jimenez. 

P. S. — For the better understanding of the declarations of Mr. Astua 
I should state the replies of Mr. Astua are his answer to your last proposal 
in WTiting, modified verbally by you in relation to the indemnity for the 
damages and losses caused by the Govermnent of Costa Rica by its arbitrary 
conduct. To arrange this point of damages and losses, you stated to Mr. 
Astua that you were disposed to renounce yom- reclamation, if the Govern- 
ment would not place obstacles to the cultivation of all the territory from 
Cuabre to below, which would belong to Panama in case of the ratification 
of the Guardia-Pacheco treaty, and if the forty thousand colones should 
cover all classes of customs duties on importations made by you or your 
company for the space of ten years. As a result, the answer of Mr. Astua 
refers to your written proposition, modified by the reclamation for damages 
and losses, as has been stated. 

(s.) RicARUo Jimenez. 

No. 1054. 

Legation of the United States of America, 

San Jose, Costa Rica, June 11, 1905. 
The Honorable Francis B. Loomis, 

Acting Secretary of State, Washington, D.C.: 

Sir, — On the 6th inst. I cabled you as follows, translated: "Have not 
obtained arrangement for McConnell . Awaiting instructions." I was loath 
to send even the five words, but Mr. McConnell would have thought that 
I was not doing all in my power for him, and I felt obliged to accede to his 
request. Your No. 639 of May 27 has since reached me, and justifies my 
first objection to sending the message, as well as my decision not to ask 
for reply by cable. I have the honor to enclose herewith copy and trans- 
lation of a letter from the Minister of Foreign Relations, Mr. Astua, dated 
7th inst., stating his conclusion of negotiations with Mr. McConnell, and 
presenting his reasons assigned for a failure to arrange a modus vivendi 
with him. The letter was accompanied by Mr. Astua's last written prop- 
osition to Mr. McConnell, copy and translation of which form my Enclosure 



129 

No. 2 in despatch No. 1051 of May 28, to which I beg reference. The De- 
partment ^vill best judge of the value to be given his arguments. But it 
seems proper for the writer to state that no effort has been spared to obtain 
for Mr. McConnell a modus vivendi, acting under such instructions as I 
have received and which are confinned in your No. 639, above alluded to. 
At the last interview I had with Mr. Astua, Mr. McConnell accompanying 
me, we had reached a basis mutually acceptable except in regard to the 
withdrawal by Mr. McConnell of his demand for damages on file with the 
Department of State. Both parties insisting on maintaining their posi- 
tions in this respect, the question was then left open for further discussion 
without favorable result. Mr. McConnell informed me that he would 
leave for Bocas del Toro to-day, and thence to the United States. 
With assurances of my highest consideration, I beg to remain. Sir, 

Your most obedient servant, 

William Lawrence Merry, 

American Minider. 
Enclosure: 

Minister Astua to Minister Merry. 



No. 1054. 

[Translation. Enclosure No. 1.] 

San Jose, June 7th, 1905. 
Secretary op Foreign Relations or Costa Rica: 

Mr. Minister, — The friendly intervention of Your Excellency in the 
matter which has been ventilated in this Secretaryship with Mr. Herbert 
Lee McConnell moves me to communicate, in a confidential manner, the 
last occurrence in said business. 

Upon the basis that there was no official intervention on the part of the 
United States and aiding the pretension of the said McCormeU, Your Ex- 
cellency made efforts before this Ministry to the end that there should .be 
procured for the said gentleman a modus vivendi which should place him 
in conditions of being able to continue and exploit, on the terms of the 
present, the business of bananas which he has undertaken on the left bank 
of the Sixola, region of Talamanca. 

The fact of Your Excellency as mediator and the good disposition with 
which my Government was disposed to treat with Mr. McConnell, always 
that his pretensions conformed with a spirit of equity and of reciprocity 
consistent with the parties interested, caused me to celebrate with him 



130 

several conferences with the idea that we might arrive at a result favorable 
to McConneU and in harmony with the laws of the country. 

Mr. McConnell commenced by presenting to this Secretaryship a solicita- 
tion, dated April 3d last past, which I was forced to decline for not offering 
any advantage which might at least compensate in part for the valuable, 
as well as exceptionable, concession which it contained. Notwithstanding, 
to demonstrate the good disposition in which the Government found itself 
toward Mr. McConneU, on refusing his, it made him a proposition on the 
12th of the same month and year which Mr. McConnell on his part thought 
well to refuse, notwithstanding that in my conception it promised a good 
future for his business. Later and at the request of McConnell this Secre- 
taryship sent him a project of a contract, of wliich a copy accompanies this 
to Your Excellency, which offered him a modus vivendi sufficiently favor- 
able, and which, apparently accepted in general, did not have his approbation 
in some details of importance. 

McConnell objected to various clauses of the project mentioned, as 
follows : that which refers to the time of the vaHdity of the concession and 
the consequent disoccupation of the lands and edifices constructed; that 
which placed to his charge the responsibihty that the State might incur 
respecting the right that will correspond to third parties that may show 
themselves to be owners or possessors of the lands conceded to McConnell; 
that which fixes as one of the clauses for the forfeiture of the agreement 
the exercise of contraband at Gandoka by McConnell or by any of his 
subordinates; that wliich obhged the contractor to renounce the diplo- 
matic procedure; and, fuially, that wliich obhged liini to renounce the right 
which he believes he has to demand damages and losses caused, — a pre- 
tension wliich my Government has always contradicted. 

In regard to the fu'st of the objections, I did not find it inconvenient to 
extend the term of the modus vivendi to ten years, always, of course, saving 
the possibihty that in this lapse the Guardia-Pacheco Treaty should be 
ratified, which gives to the Repubhc of Panama a part of the territory 
wliich Costa Rica now occupies, and in wliich are situated the cultivations 
of McConnell. This last concession, made in complaisance to no desire 
to paralyze the pending negotiation, was not accepted hj McConneU, and 
the Secretaryship under my charge and the said gentleman, having come to 
the sittiation which I have indicated mth the brevity which the nature of this 
note demands, I should communicate to Your Excellency that at the last 
interview McConnell manifested to me categoricaUy that his efforts should 
be considered closed. 



131 

With the object to furnish Your Excellencj- a methodical informatioii 
in this matter, I place -witlun your knowledge the foregoing exposition, and 
it pleases me to offer you the testimony of the greatest consideration and 
esteem. 

(Signed) Jose Astua AcnLAii, 

Minister of Foreign Relaiions, etc. 

No. 613. 

Depaetmext of State, 

Washtngton, June 20, 1905. 
WrLLiAxi L. ^Ieert, Esquire, etc., etc., etc., 
San Jose : 
Sir,— I have to acknowledge the receipt of your despatch No. 1051 of 
the 2Sth ultimo, transmitting copies of correspondence coimected with 
your efforts to adjust the differences between the Costa-Rican Government 
and Mr. H. L. McConneU, and to inform you that your action is approved 
by the Department. 

You are requested not to send your enclosures on flimsj^ paper, which 
easily becomes detached and torn. 

I am. Sir, 

Your obedient servant, 

John Hat. 

Note. On the 22nd of October, 190-5, McCoimeU filed a second Memorial 
with the State Department. 



132 



McCONNELL'S SECOND MEMORIAL. 
, Dated and sworn July 28th, 1905, but filed on October 18th, 1905.) 



In the Matter 

OF 

The Memorial of the American Banana Company, 
AN Alabama Corporation of which Herbert L. 
McConnell is President, for Redress for 
Property seized near the Boundaries of Pan- 
ama AND Costa Rica. 



To the President: 

Sir, — On behalf of the American Banana Company, a corporation 
composed of citizens of the United States, I beg very respectfully to call 
your attention to the following considerations in support of their me- 
morial which I submit herewith. 

These citizens and their employees, in accordance with the laws of the 
Republic of Panama, which authorized them so to do, entered upon the 
pubUc lands of that Republic, on the north side of the Sixola River, ad- 
joining the Republic of Costa Rica, cleared the same, planted bananas 
there, and began to buUd a railroad to enable them to transport bananas 
from their plantations to the sea-board. 

Officers of Costa Rica have forcibly stopped their work, have seized 
their property, and have prevented the continuance of the banana cul- 
tivation. If this conduct is persisted in, it will altogether destroy the 
investment made by the petitioners, and grievously infringe their per- 
sonal rights. 

All attempts hitherto made by the United States to arrange an ami- 
cable modus Vivendi between the petitioners and Costa Rica have failed. 

Under these circumstances I submit that it is the duty of the United 
States to inform the government of Costa Rica that any further inter- 
ference by that Republic with the persons or property of the petitioners 
and their employees will be considered by the United States as an un- 
friendly act. 



133 

It is, I submit, always the duty of the United States to protect the 
■citizens of that country against the unlawful violence of other govern- 
ments, and to obtain redress, if possible. To use the language of Mr. 
Bayard, Secretary of State, to Mr. Merrill, in 1887, American citizens 
"must be protected in their persons and property by the representatives 
-of their country's law and power; and no internal discord must be suf- 
fered to impair them." (Foreign Relations U. S. 1894, p. 1167.) 

But this duty becomes especially clear in regard to injuries done our 
citizens by a foreign power within the limits of the Republic of Panama. 
By treaty with that Republic, the youngest and weakest in the family 
■of nations, the United States of America guaranteed and agreed to main- 
tain its independence. This must necessarily be considered as a guar- 
.anty of its independence throughout its whole territory. Otherwise the 
integrity of the Republic might be frittered away till only a shadow be 
left. 

The neutrality and independence of Belgium is guaranteed by the great 
powers of Europe. No one would suppose for a moment that Germany 
would be allowed to seize one slice and France another under pretext 
that Belgium still remained intact at Brussels. 

I submit respectfully, but firmly, that the honor of the United States 
is deeply involved in the cause I plead. That little Republic of Panama 
is unable to protect American citizens in the pursuit of peaceful indus- 
tries within its borders. A great American historian has truly said that 
■"a government touches the lowest point of ignominy when it confesses 
to an inability to protect the lives and property of its citizens" (John 
Fiske, "Critical Period of American History," p. 161). 

The only answer it seems to me that can be made to this argument 
is that the land in question is disputed territory, and claimed by Costa 
Rica. To this there are two answers : — 

1. The Constitution of the Republic of Panama, published February 
15, 1904, describes its northern boundary as including the land in ques- 
tion. The guaranty by the United States to the Republic must be under- 
stood as guaranteeing this boundary. If not, what boundary does it 
guarantee? The government of the United States has heretofore taken 
this view of the subject. An official map, published by the War Depart- 
ment,* shows the northern boundary of Panama as including the land 
in question. 

2. Before the independence of Panama, the boundary between Co- 

* Map of the Republic of Panama prepared in the War Department Office of Chief of Staff, Second 
<Military Information) Division General.Staff, U. S. Army, January, 1904. 



134 

lombia and Costa Rica was in controversy between them. By treaty 
dated November 4, 1896, they agreed to refer this question to the deci- 
sion of the President of the French Republic. By this treaty the award 
was to be final, and to have the effect of a treaty between the two con- 
tracting parties. 

On the eleventh day of September, 1900, President Loubet made his 
award. The boundary fixed by the award is that claimed by the Con- 
stitution of Panama, already mentioned. On this award as a final judg- 
ment the petitioners relied, and had a right to rely. 

In support of this proposition I invoke the policy of the United States 
ever since the Jay Treaty with Great Britain, in 1794. In many instances 
since then our government has agreed to submit to arbitration questions 
of the greatest importance. These awards we have claimed when in our 
favor. When against us, we have complied with them. It has become 
a principle of international law as understood in this country that such 
awards have all the sacredness between nations that judgments of the 
highest Court have between individuals. 

In the memorials submitted herewith the facts are stated more in de- 
tail. I have summarized them in this letter, and I appeal with confi- 
dence to you for that protection to the just rights of my clients which 
has thus far been denied. 

I am, with very great respect, 

Very truly yours, 

Everett P. Wheeler^ 



135 



UNITED STATES OF AMERICA, 
Department of State. 



In the Matter 

OF 

The Memorial of the American Banana Company, 
A Corporation duly incorporated under the 
Laws of the State of Alabama, of which Her- 
bert L. McConnell, an American Citizen, is Pres- 
ident, and Other American Citizens are the 
Stockholders, for Redress for Property sum- 
marily seized ■waTHOUT Process of I^aw, and Law- 
ful Business interfered with on the Sixola 
River, near the Boundaries op the Repub- 
lics of Costa Rica and Panama. 



To the Honorable the Secretary of State, 
Washington, D.C. : 

Sir, — The American Banana Company, a corporation duly organized 
under tiie laws of the State of Alabama, of which Herbert L. McConneU, 
a citizen of the United States, is President, and other citizens of the United 
States are the stockholders, respectfully shows as follows : 

We refer particularly to the memorial to the Department of State which 
our President, Herbert L. McConnell, filed in this matter on our behalf 
on December 22nd, 1904, and the favorable action of the Department 
thereon. Such action was expressed in instructions to Mr. Merry, the 
Minister of the United States at Costa Rica, dated February 8th, 1905 
(No. 619). Said instructions were in part as follows: 

"You will say to the minister" (of Costa Rica) "that the Govern- 
ment of the United States is not making any intervention in the mat- 
ter, reserving the whole subject for fuller consideration should that 
become necessary, but you are simply acting in the way of good offices, 
with the earnest hope of the Department that some satisfactory modus 
Vivendi may be arranged between McConnell and his associates, on the 
one hand, and the Costa-Rican Government, on the other. 

"You wiU cable briefly the substance of the Costa-Rican Reply." 

On March 8th, 1 905, we were informed by telegram of the Costa-Rican 



136 

Government's promise to the State Department through Minister Merry 
to enter into a modus vivendi with us or our agent upon arrival at San 
Jose. Mr. McConnell thereupon went to Costa Rica, and with other 
representatives of the company for two and a half months labored to 
obtain the promised modus vivendi, but without any result. We there- 
fore ask that such steps may be taken as to you may seem proper, to 
obtain for us the promised mutually satisfactory modus vivendi, and 
such further relief as may be just. In this connection it seems to us 
desirable to give some further account of the negotiations which took 
place to procure a modus vivendi, and of the objections which have been 
taken to our obtaining the relief which we have asked. 



I. 

Steps taI'^n to procure Modus Vivendi. 

Mr. McConnell reached San Jose on March 29th, Mr. 0. F. Bolder, who 
represents our Central American interests, having joined him at Port 
Limon. On the following day they conferred with Minister Merry and our 
attorney, Mr. Ricardo Jimenez, and on the 31st, accompanied by Mr. 
Jimenez, had an intei'view with Mr. Astua, the Minister of Foreign Rela- 
tions and Public Works. 

(a) Various Proposals for a Modus Vivendi. 

Mr. Astua persistently declined to submit a proposition for an agree- 
ment, insisting that we do so, hence on April 3rd we submitted a proposal, 
a copy of which we herewith attach (Enclosure No. 1). We also attach 
copies of our proposals of April 17th (Enclosure No. 2), May 3rd (En- 
closure No. 3) and May 25th (Enclosure No. 4). On April 12th, May 19th 
and May 22nd, 1905, respectively, the Costa-Rican Government submitted 
Counter Proposals (Enclosures Nos. 5, 6 and 7), and in an interview on June 
3rd their minister Mr. Astua stated that his Government would not recede 
from the main propositions embodied in these proposals. 

In regard to the proposals made in behalf of the American Banana Com- 
pany it is perhaps enough to state that they were drawn with a view to 
meet the suggestions of the State Department, and generally with the 
explicit approval of Minister Merry. Such an approval appears in his 
letter of April 23rd, 1905 (No. 1037), addressed to the Hon. Francis B. 
Loomis, in which after referring to his Enclosure No. 1, the first proposal 



137 

for a so-called modus vivendi made by Costa Rica, he continues as follows : — 

"Enclosure No. 2 copy of my reply thereto, joining with Mr. Mc- 
Connell in its rejection and stating my reasons therefor, also enclosing 
a memorandum of a modus vivendi the terms of which were arranged 
by Mr. Jimenez cind myself fulfilling in my judgment the equitable 
requirements of the case." . . . 

We would add further that we after^rard offered to withdraw the sixth 
clause of that proposition, which was perhaps open to criticism. 

The propositions of Costa Rica, on the other hand, practically proposed 
that original grants of land be made by the Government of Costa Rica on 
terms so hard as to be impossible. None of them could have been consid- 
ered as a modus vivendi. Concerning the first of these Costa-Rican propo- 
sitions Minister Merry wrote to the Costa-Rican Minister on April 18th, 
1905, as follows (see Enclosure No. 2 of Mr. Merry's letter to Mr. 
Loomis, No.l037)•.— 
"After carefully reading the proposed Concession it seems to me 
properly applicable to a long occupation of govermiient public lands, 
with ascertained title to permanent sovereignty. But it cannot in 
any proper conception be considered a modus vivendi, which is all that 
I am instructed by my Government to obtain for Mr. McConnell et al., 
and it ajDpears to me all that he can accept under the doubtful con- 
ditions of title and sovereignty above alluded to." 

The full text of this letter is given in Enclosure 8. 

(b) Analysis of Costa Rica's Proposals. 

Taking these Costa-Rican propositions up more in detail, it appears that 
the first one, submitted April 12th, 1905 (Enclosure No. 5, Clause 1) is called 
a lease, and is in fact a lease with an annual rental. Thus Costa Rica's 
rights of sovereignty are assumed at the outset. 

Clause 2 specifies the area. 2,000 hectares of land, to be divided into 
lots of 500 hectares each, leaving alternate lots of half that, extent for the 
Government. That would mean the abandonment of one-third of the 
plantation, as the land is planted continuously. 

Clause 3 reserves the right to cancel the lease, if the lessee fails to culti- 
vate. 

Clause 4 provides for the reversion of lands and improvements to Costa 
Rica at the end of term without any remuneration to us. 

Clause 5 requires us to pay to Costa Rica full duties, if we wish to redeem 
our confiscated goods. 



138 

Clauses 6, 7 and 8 provide that for twelve years we pay all the expenses 
of erecting the buildings necessary for the Costa-Rican Government to be 
installed at Gandoka, and pay " the salaries of the staff of the local govern- 
ment police, and custom house, without any exception"; also that the 
material for the railroad shall pay half duties. 

These provisions are all impossible, because they assume the sovereignty 
of Costa Rica over this region, which your petitioners cannot assent to. 
They are equally impossible from a practical standpoint. — the provision 
that full duties be paid on the railway supplies confiscated, namely, 3^ 
colones per kilo, or more than $16 per ton, and that half this rate be paid 
on future railroad supplies, is prohibitive. 

The copy of letter attached (Enclosure No. 9) from Messrs. F. J. Al- 
varado and Company, prominent steamship agents, and receiving and for- 
warding merchants, dated Limon, June 12th, 1905, shows that all railway 
supplies for the Costa Rica R.R. and the Northern Railway, which are the 
only public railroads in Costa Rica except one on the Pacific belonging to 
the Government, are exempt from duties. 

Both of the railroads are owned or leased by the United Fruit Company. 
An example of one of these exemptions is given in Enclosure 10, aimexed. 

In the second proposal of Costa Rica, called a "tolerance" and dated 
May 19th, 1905 (Enclosure No. 6), Mr. McCoimell, with whom the contract 
is made in behalf of your petitioners, is required to state in Paragraph Sixth 
that he is "convinced that he lacks all right to the possession, cultivation 
or other use whatever of the lands in question" and to admit the justice of 
the confiscation of your petitioner's property by Costa Rica. The first 
clause allows the work to proceed at the plantation till Augxist 31st, 1906, 
and confines the permission to places where the bananas are one year old. 

The third clause compels Mr. McCoimell to lease at that time, or pay 
10,000 colones for another year's tolerance with the consent of Costa Rica. 

The fourth clause provides that the tolerance will be terminated by the 
ratification of the Guardia-Pacheco treaty, by "the adjudication to third 
parties of said lands by virtue of pendant filings," or the practice of con- 
traband in Gandoka by McConnell or any of his employees. Clause fifth 
requires that McConnell pay Costa Rica within fifteen days 40,000 colones 
for duties on building materials and machinery, and he must agree to pay 
duties on all other imports. Clauses sixth and seventh provide that Costa- 
Rican officials shall supervise loading and unloading, McConnell paying 
their salaries; clause eighth, that McConnell shall not, under any circum- 
stances, be allowed to recover moneys paid to the Costa-Rican Government 



139 

pursuant to the agreement. Clause ninth requires McConnell to abandon 
all claims against Costa Rica for seizure of his goods, and to submit the 
"interpretation of results of the tolerance ... to the courts of the Re- 
public, discarding completely the course of diplomacy." 

In short, this agreement or tolerance gave McConnell the right to remain 
undisturbed on the property, where the plants were one year old, for about 
a year, abandoning land planted withm a year and other lands prepared 
for planting at considerable cost. For this right he was required to ac- 
knowledge that he had no rights in this territory except as given by Costa 
Rica, pay 40,000 colones and the salaries of the Costa-Rican officials, and 
agree to give up all claim for indenmity by reason of the seizure of his goods 
by Costa Rica. Even the meagre rights McConnell received would be 
forfeited if the boundary treaty between Panama and Costa Rica were 
ratified or some one in his employ, unknown to him and in spite of the 
vigilance of the customs officials paid by him, comcmitted some act of 
smuggling. They would also be forfeited if the land were adjudicated to 
other parties by virtue of pending claims. The pending proceedings by 
the United Fruit Company to obtain a denouncement from Costa Rica 
would be included in this reservation, and the reservation was undoubtedly 
drawn with them in mind. 

Thus jrour petitioner's claims were made entirely subject to the Costa 
Rica courts, and in addition to that we were required to forego the assist- 
ance of our Government if a dispute arose under the agreement. Under 
any circumstances Costa Rica was to get rid of the large claim for damages, 
and retain an exorbitant money consideration. Such an agreement can- 
not be considered a serious effort to arrive at a modus vivendi, and was a 
contemptuous treatment of your petitioners, supported as we were by the 
good offices of the United States Goverimaent. In the whole course of 
the negotiations no proposition was offered by Costa Rica which could lay 
claim to being in any way a modus vivendi. 

The phraseology and general terms of the Goverimient's proposed agree- 
ment submitted May 22nd (Enclosure No. 7) was very much the same as 
those of that submitted May 19th, except that the term is extended from 
fifteen to twenty-four months and the extent of the cultivations increased 
from 1,200 to 1,500 hectares of land. Paragraph 4 of this reads as follows : — 

"That the Costa-Rican Government has heard his petition and has 
declared that the petitioner has no right whatever to the said lands, 
that they cannot recognize therefore any right whatever derived from 
the fact of his possession because such possession has its source in the 



140 

ignoring of the sovereignty of Costa Rica in that part of this territory, 
but that the Government to avoid as far as possible the losses attend- 
ant on the abandoning of the plantation and its annexes, while the 
petitioner is seeking to obtain, in legal manner, from whomever it 
may concern, the ownership or lease of the occupied area, is willing 
to grant him the permission aforesaid; it being fully understood that 
the said permission does not improve in any way the actual situation 
of the enterprise of McConncll, neither in respect to the absolute owner- 
ship of Costa Rica in those lands, nor in respect to the titles to these 
lands which may be vested in private persons nor in respect to the 
rights of third parties derived from denouncements already made ; be- 
cause the said permission only means that the State declares that they 
will not, during the said term, exercise against McConnell their right 
of excluding him from these lands, and means, too, the permission 
given him to make use of the fruits of the plantation." 

(c) Further Negotiations in Regard to Proposals. 

When we adAased Mr. Merry that we could not accept the Government's 
proposition, Mr. Merry suggested to Mr. Jimenez that he draft a proposition 
for an agreement entirely fair and equitable to both parties, which was 
done, and after its approval by Mr. Merry it was on May 25th presented 
to the Goverrmient and a copy left with the former. 

Some negotiations ensued, in the course of which the Costa-Rican 
Government insisted that the petitioners should release all claim to dam- 
ages for the injury already done him and his associates, and should submit 
the question of title to the courts of Costa Rica. But Mr. McConnell could 
have seen no justification for either requirement. As to the first, the dam- 
ages already caused have been great, and ought to be reimbm'sed. As to the 
second, the very question at issue between the parties is whether the land 
to the north of the Sixola River belongs to Costa Rica. The jurisdiction of 
the courts of that Repubhc so far as the land itself is concerned, depends 
upon the decision of this primary question. It ought to be, and in fact 
has been, settled by an impartial arbitration adversely to the claim of that 
Republic. On what possible ground, then, can your petitioner be required 
to submit it to the Court of Costa Rica, one of the parties to the original 
controversy, for its exclusive decision ? If any court is to decide the ques- 
tion, it should be a court of the United States of America, of which country 
the contending parties are citizens. 

Some of these considerations were m-ged upon Mr. Astua by Mr. Merry 
and Mr. Jimenez, and finally Mr. Astua verbally conceded what was asked 
on all points except that of renunciation of the claun for damages. But, 



141 

■when on the 22nd he submitted a draft of an agreement already referred 
to (Enclosm-e 7), unexpected and unjust conditions were embodied, one of 
which provided that at the expiration of two years we abandon the lands, 
cultivations, railroad, port improvements, buildings, etc., which made it 
■out of the question for us to agree to this proposition, aside from the require- 
ment that we renounce our claim for damages without a consideration. 
On several occasions we reached what appeared to be practically definite 
understandings with Mr. Astua, but, when his drafts of proposed agreements 
were presented, they were so worded that the verbal understandings were 
scarcely recognizable, and their acceptance in every case without exception 
would have been ruinous. 

It is true that on May 27th it again appeared possible to reach an under- 
standing with the Costa-Rican Govermnent; and on that date we again 
requested Mr. Merry to cable the Department regarding the matter of re- 
nunciation of the claim for damages, but he declined on the ground that he 
could not afford to cable regarding a matter concerning which he was al- 
ready informed, and also on account of the expense, saying that he did 
not know whether our case should be regarded as an m'gent one, and that 
lie was in doubt as to whether it would be proper to permit us to defray 
the cost. 

Mr. Astua stated in his verbal proposition of June 3rd, as shown by 
•Clause 3 of Mr. Jimenez's letter (Enclosure No. 11), which proposition as 
explained by Mr. Jimenez was intended to include an adjustment of our 
claim for damages, that the Government insisted that the tribunals of 
Costa Rica have at once exclusive jiirisdiction regarding the question of 
title to the lands, without awaiting the ratification of the pending treaties, 
although he had on May 26th agreed to accept a clause to the effect that 
the agreement would not prejudice the rights or title of third parties. 

Clauses 4 and 5 of this final proposition of Costa Rica provide that the 
arrangement could never continue more than ten years, even though at 
the end of that period the sovereignty of the territory had not been de- 
termined, and that, if terminated for any reason, we must abandon the 
lands altogether with all the improvements. 

The acceptance of any one of Costa Rica's four propositions would 
unquestionably have resulted not in saving us from additional losses, as 
was the purpose of the Department in requesting for us a 7nodus vivendi, 
but in greatly increasing them; since, according to the provisions in all of 
those propositions, it would have been possible to have summarily brought 
about a termination of the arrangements, without compensation to us, 



142 

after we had spent many additional thousands of dollars in construction 
of the railroad and harbor improvements. 

II. 
The Policy of the State Department has been laid down that the 
Courts of Costa Rica at the Present Time should not deter- 
mine the Title to the Lands in Question. 
The point has been taken by our opponents several times during the 
course of these proceedings that the State Department should take no 
steps to secm-e a modus vivendi for your petitioner, if any one else claimed 
the lands. 

From the Department's despatches of May 12th and 27th to Mr. Merry 
we infer that it is not its desire, at least at this time, to consider the ques- 
tion of title. The despatches referred to read in part as foUows: — 
That of May 12th:— 

"The object of the modus vivendi should be to preserve the status 
quo and the property of Mr. McConnell or of the corporation he repre- 
sents until the boundary question shall have been settled by the ratifi- 
cation of the treaty between Panama and Costa Rica, when the parties 
would have to resort to the com'ts of the State within whose juris- 
diction the lands lie for the hearing and decision of the title to the 
propei'ty in question." 

That of May 27th:— 

"The contest between Mr. McConnell and others over the title to 
lands along the Sixola River is one that belongs to the courts having 
jurisdiction. The Department cannot undertake to try to settle their 
conflicting claims of title, and the parties will have to resort to their 
legal remedies. The Department only contemplates a modus vivendi 
until the question of disputed sovereignty should be finally settled 
between the Governments of Costa Rica and Panama." 

Moreover, as far as any claims that have hitherto been brought forward 
are concerned, the question of title involves also the question of sover- 
eignty and the determination of the boundary line between Costa Rica 
and Panama. Your petitioners claim title to this property through the 
laws of Colombia and Panama. The United Fruit Company claims title 
through denouncements allowed by the Government of Costa Rica. If th& 
land is not a part of Costa Rica, the latter title will be void and Costa- 
Rican Courts should certainly not determine its vaUdity. 

It seems, however, necessary to take this matter up, because Minister 



143 

Merry laid stress upon certain denouncements granted to the Astua family, 
-and by them assigned to the United Fruit Company. Mr. Astua, the 
€osta-Rican Minister, with whom all our negotiations took place, is the 
head of this family and one of those to whom the denouncements were 
made. 

In order that Mr. Merry might understand that the Department was 
.aware of the United Fruit Company's claim of title to our lands before 
Mr. Hay instructed him in his despatch of February 8th, 1905, to use his 
good offices to obtain a modus vivendi for us, we showed him during the 
month of April, 1905, and again at his request on May 5th, a copy of Mr. 
Jas. M. Beck's letter of February 3rd, 1905, to the Department, reading 
in part as follows : — 

"I have the honor to acknowledge the I'eceipt of }^our letter of Jan- 
uary 9th with reference to the application pending in your Depart- 
ment on behalf of Mr. H. L. McConnell, in which you further say: 

"The Department will, however, give due consideration to any com- 
munication which you may desire to make sho\nng that Mr. McCon- 
nell does not own the lands and property mentioned, and would there- 
fore not be entitled to the protection of his Government against ar- 
bitrary and illegal molestation on the part of the Costa-Rican author- 
ities. 



"The United Fruit Company further aver that under the laws of 
Costa Rica they have pre-empted, under what is called the 'Astua 
Denouncement,' the title to a large extent of territory along the banks 
of the Sixola River, including in whole or in part the lands unlawfully 
occupied by Mr. McConnell, and the Com]Dany therefore claims a su- 
perior title to any pretended title of McConnell. The proof of their 
right to the lands in question is on file among the public records of 
Costa Rica, and I request an opportunity to submit such proof to you 
before you pass upon McConnell's application. The Secretary of the 
United Fruit Company has cabled to Costa Rica to secure certified 
copies of this ' Denouncement,' showing the superior title of the United 
Fruit Company to the lands in question." 

At the same time we pointed out to Mr. Merry that the proposed modus 
vivendi could not in any way conflict with the interests of other Amer- 
ican citizens, as it would not interfere with the action of the courts, in 
which Mr. Merry acquiesced. Nevertheless, on May 9th, Mr. Astua, Min- 
ister of Foreign Relations for Costa Rica, stated to our attorney, Mr. 
Jimenez, that on May 6th Mr. Merry called and informed him that he would 



144 

take no further action in our behalf unless he should receive instruc- 
tions from the Department to do so. Mr. Astua further stated that Min- 
ister Calvo had advised that the State Department had informed him 
that no intervention was intended; that it was his opinion that our Gov- 
ernment had abandoned oiu- case, and that the President did not now 
fear intervention. 

Mr. Merry seemed to feel further that, if the title to the land claimed 
by your petitioners were to be Utigated in the Costa-Rican Coui-ts by 
those opposing your petitioners' title, that would afford a reason why 
he should not try to secure a modus vivendi until the question of 
boundary was settled between Costa Rica and Panama. He wrote the 
Department on April 23rd (No. 1037) :— 

"Even if without merit, a contest involving prior acquired title 
might possibly take the case into the courts of Costa Rica and prevent 
further action on my part at the present time." 

This statement seems altogether inconsistent mth the whole idea of 
a modus vivendi, which, we submit, was suggested by the State Depart- 
ment, because it felt that Costa Rica tribunals at this time ought not 
to settle this question of title which involved their own boundary. It . 
also seems wholly inconsistent with Mr. Merry's note of March 8th, 1905, 
to the Costa-Rican Minister (Enclosure No. 12), which reads in part as 
follows : — 

"Whatever may have been the status of the McConnell claim vs. 
Your Excellency's Government heretofore, the signing of the Panama 
boundary treaty on the 6th instant has in my judgment entirely 
changed it, indicating the advisability of prompt action to avoid use-' 
less and serious responsibility. Mr. McConnell should, it appears to 
me, be at once advised to hereafter address himself to the Panama 
Government when discussing his position at Gadocan and the lower 
Sixola Valley. It appears oiJy an act of justice to himself and asso- 
ciates that Your Excellency's Government shall promptly permit him 
to proceed with his work subject to the control of the Panama Govern- 
ment for which the territory is temporarily occupied in trust by Your 
Excellency's Government, until the Treaty shall be approved by the 
Congress of Costa Rica and Panama. This coiu-se appears not only 
equitable, but will avoid reclamation for damages which must other- 
wise follow. For this reason I have respectfully suggested that I may 
be permitted to telegraph my Government that, 'the boundary treaty 
being signed, the Govermiient of Costa Rica no longer opposes or 
^ obstructs the work of Mr. McConnell and associates at Gadocan and 
Sixola.' Assuring Your Excellency that my action is induced by my 
desire to avoid future contention, etc." 



145 

Jlr. Mem' further stated in his despatch of May 21st, 1905, to the 
Department (Xo. 1050) : — 

"I have the honor to forward here\\ith a communication from Mr. 
John M. Keith, an American citizen resident here representing the 
political interests of the United Fruit Company, an American corpora- 
tion, addressed to the Minister of Public Works of Costa Rica, assert- 
ing that Mr. H. L. McConnell, an .\merican citizen, has ^-iolated his 
contract A^ith said Company, as therein set forth, for which it has 
entered suit against him in the United States Com-ts. The protest of 
Mr. Jlinor C. Keith et al. against the action of ilr. ilcConnell was 
forwarded Anth my No. 1043 of May 7th, and I am since informed by 
ilr. John M. Keith that his Company is now also preparing complaint 
against ilcConnell et aL, to be presented in a Costa-Rican coiu"t of 
law vdth the purpose of forcing ilcConnell to abandon his work in the 
Louver Sixola Valley. Under these circumstances, and ha^nng in ^dew 
Diplomatic Instructions, page 67, Section 173, which distinctly state 
that diplomatic representatives 'should take no part in litigation be- 
tween citizens,' it seems to me that m}' official action in connection 
with the case is no longer proper. There has not yet been time to 
receive reph' to mj- No. 1043 of the 7th instant, and meanwhile I have 
aided Mr. McConnell as best I could to obtain a modus vivendi, con- 
sidering 3'our former instructions temporaril}' in force." 

In this connection special attention should be called to the fact that 
the proposed modus vivendi is not for account of ilcConnell personally, 
but to be made vafh him as the representative of the American Banana 
Company, to the stock of which more than one hundred American citi- 
zens are subscribers, who have invested their monej' in the undertaking 
in good faith, feeling that there was no doubt whatever as to the ques- 
tion of sovereignty and title to the lands, and that the only unusual risk 
involved was the necessity of competing -nith the United Fruit Company, 
the weU-known policy of which Company is to as far as possible monop- 
olize the banana industry. But those stockholders did not anticipate 
any particular opposition from that source other than in the market- 
ing of their products. It is true A. W. Preston and others, representing 
United Fruit Company interests brought suit on November 30th, 1904, 
in the United States courts in ilobile, Alabama, in an effort to enjoin 
McConnell from continuing in the presidency of and as a stockholder 
in the Banana Company, which suit is based on McConneU's agreement 
not to compete ■n-ith the United Fruit and Camors-ilcConneU Companies. 
In explanation of ilcConnell's failm'e to keep his agreement not to com- 
pete with the Companies named, we beg to state that the United Fruit 



146 

Company had, long before he broke his agreement, wholly disregarded 
their agreements made ^dth him at the same time. As stated, how- 
ever, that matter is now in the United States courts for adjustment. 

A suit on account of the same contract was begun in the Costa Rica 
com-ts on May 31st, 1905, notice of which was served on McConnell on June 
10th, the day before he left San Jose, the delay in service evidently being 
for the purpose of detaining him. A copy of the complaint is annexed 
hereto and marked Enclosure 13. 

This is the suit referred to in that part of Mr. Merry's despatch to the 
Department of June 17th, 1905, reading : — 

"Before the departure hence of Mr. McConnell on the 11th instant, 
he was served with official summons from Costa Rica court relating 
to his disputed rights in the Sixola ^''alley. The question being now 
formally in litigation before the local tribunals, I shall take no further 
action therein unless under instructions." 

The suit above referred to by Mr. Merry has nothing whatever to do 
with the question of title to the lands, but, even if it had, the Costa Rica 
coiu-ts according to the Department's despatches of May 12th and 27th, 
mentioned above, are not the proper tribunals to try the question unless 
and until hereafter by treaty the territory should become Costa-Rican 
soil. There is no probabiUty that this will be the case, since on March 
6th of the present year the representatives of the Governments of Costa 
Rica and Panama signed treaties formally declaring the Loubet Award 
of September 11th, 1900, decisive of boundary questions by which it 
was fixed as Colombian (now Panamaian) territory. 

A modus Vivendi, such as the Department requested the Costa-Rican 
Govermiient to make mth us, and which that Goverimient agreed to 
make, could in no way affect the action of the com'ts in relation to the 
question of title to the lands or the United Fruit Company's action against 
McConnell personally. 

III. 

Validity of the Costa-Rican Denouncements. 

r We do not suppose that the Department wishes to take up the vaUd- 
ity of the Astua denouncements granted by Costa Rica, which we claim 
are wholly invahd, even assuming the sovereignty of Costa Rica over the 
territory in question. 



147 

If the Department shoiild wish to consider that subject, we will submit 
a statement of the facts relating to it, substantiated by certified copies 
of the denouncement proceedings. 



IV. 

Panama's Exercise of Jurisdiction over the Disputed Territory. 

We believe that Mr. Merry has underestimated Panama's assertion of 
jurisdiction over the disputed territory. He states in his despatch to 
the Department of February 24th, 1905: — 

"One point that Mr. Coxe presents as important to his contention 
is, in my opinion, of no value. I refer to the clearance of the Steam- 
ship 'Orn' for Port Gadocan by the Panama officials at Bocas del 
Toro. A maritime clearance has no value as proving sovereignty of 
the port for which a ship is cleared. It is not contended that when 
the Collector of the Port of New York grants a clearance for Liverpool 
that the latter port is under American jurisdiction. The document 
merely permits the 'Orn' to 'clear' and 'weigh anchor' for Port Gado- 
can. The same clearance would have been granted for Limon, Costa 
Rica, if requested. No pretence is found in the clearance that Gadocan 
is under Panama jmisdiction and there is no pretence of permission 
to discharge cargo there. Consequently the action of the Supreme 
Government of Panama in approving the two hundred dollar fine 
against Dolder & Co., for bringing a Syrian from the temporarily 
Costa-Rican port of Gadocan, is not contradicted by the clearance 
from Bocas del Toro by Panama officials of a ship bound to the same 
port." 

In his despatch of October 9th, 1904, to the Department Mr. Merry 
wrote : — 

" I beg to forward herewith copy and translation of a permit from 
the Inspector of the Port of Bocas del Toro, Republic of Panama, 
authorizing the Steamship 'Orn' to proceed to Gadocan to discharge 
her cargo. The clearance is not specified as being 'Coastwise' or 
'Foreign'; but, if the latter, would be illegal for the reason that Port 
Gadocan has not been declared open to commerce by the Government 
of Costa Rica which is now in possession. The document is forwarded 
at the suggestion of Mr. McCbnnell." 

The clearance referred to, which on its face is altogether informal and 
not such as wotdd be in order if the vessel were being cleared for a foreign 
port, reads: — 



148 

"Inspector of the Port, Present: Please grant permit Str. 'Orn' 
in charge of her captain, Mowdndle, may weigh anchor for the place 
'Gadocan' (Sixola). Bocas del Toro, July 22, 1904. Otto F. Bolder, 
per Grabowski. 'Weigh anchor' — Inspector of the Port — (signed) 
C. Clement." 

In order, however, that there may be no doubt whatever as to the 
fact that the "Orn" was cleared for Gadocan as a home port, we enclose 
here'ndth a certificate (Enclosure No. 14) from the Inspector of the Port 
Bocas del Toro, Panama, of May 6th, 1905, to the effect that three Panama 
customs officers were placed on board the S.S. "Orn" for the purpose 
of superintending the discharge of her cargo at Gadocan. The Govern- 
ments of Colombia and Panama since April, 1903, up to and including 
July 22nd, 1904, when the "Orn" was cleared for Gadocan, repeatedly 
cleared our launches for that port, treating it as domestic. Since that 
time the Costa-Rican soldiers have stopped all operations on our part. 
The Panama Government has, since the discharge of the "Orn's" cargo, 
claimed $10,149.90 Colombian currency, as duties on her cargo, and con- 
tinues to insist on its collection, as shown by the enclosed copy of an edict 
of April 27th, 1905 (Enclosure No. 15), published in the Official Gazette 
of Panama on May 23rd, 1905. We have protested against the payment 
of this bill on three accounts: first, our concession provides that all rail- 
way supplies imported for the construction of the road connecting Ga- 
docan with the Sixola River will be exempt from duties; second, the 
Panama Government published in the Official Gazette, in the City of Pan- 
ama on July 12th, 1904, a law exempting all railway supplies from du- 
ties, which law went into effect in that City on the 15th, or seven days 
prior to the entrance at the custom-house of Bocas del Toro of the "Orn's" 
cargo; third, that Government has not protected us in the control and 
use of the cargo, the greater part of which, or aU that was discharged at 
Gadocan, having been confiscated and being still held by the Costa-Rican 
Government. 

Conclusion. 

The sum of the whole matter is this : — 

There was a controversy between the United States of Colombia and 
Costa Rica as to the boundary between them. By treaty dated Novem- 
ber 4th, 1896, they agreed to submit this controversy to the decision of the 
President of the French Republic. Article 4, paragraph 6, of this treaty 
contains the following clause : — 



149 

"The Arbitrator's decision, whatever such may be, will itself serve 
as a complete and binding treaty between the two high contracting 
parties, and wi]l admit of no appeal whatever. Both parties bind 
themselves to a faithful fulfilment and to resign all claims against the 
decision, staking thereon their national honor." 

On the eleventh day of September, 1900, President Loubet made his 
award. This determined that the strip of land to the north of the Sixola 
River and between it and the spur of the Cordillera, which runs from Monkey 
Point on the Atlantic Ocean, belonged to the United States of Colombia. 

When the RepubHc of Panama was formed out of Colombia, its Con- 
stitution published February loth, 1904, described its northern boun- 
dary to be that fixed by the arbitral award before referred to. The United 
States of America by treaty with this new Republic guaranteed and agreed 
to maintain its independence. This must necessarily be considered as 
a guaranty of its independence throughout its whole territor}-. Rely- 
ing upon the above-mentioned award of President Loubet, ]\Ir. ilcConnell 
the present president of your petitioner, in conformity with the laws 
of Colombia and Panama, entered upon certain uncultivated lands within 
the strip before mentioned, and estabhshed thereon residences and arti- 
ficial cultivation. After the independence of Panama and reljang upon 
the international proceedings above set forth, other American citizens 
joined with the said McConnell in his undertaking, and formed the Amer- 
ican Banana Company, and took further steps in improving and culti- 
vating said land. Thej^ thus accjuired the right of property in the same. 
This property has been arbitrarily and illegally interfered with by the 
Republic of Costa Rica. 

So far has that Government gone as to refuse to permit the sahing of 
a Hghter load of railway supphes that was sunk at Gadocan in July, 1904, 
and by preventing in April, 1905. under threat of arrest and imprison- 
ment, as shown by a copy of the certificates of Messrs. Woolley, Adams 
& Herrera (Enclosure No. 16), the removal to a place of safety of rail- 
way material on the beach, a portion of which was on that account washed 
into the sea and lost. At our request, through Mr. Merry an order was 
issued later, permitting the removal to a place of safety of the remainder 
of those supphes. Your petitioners ask the protection of theu- Govern- 
ment. Their agents and emplo3'ees have been forcibly dispossessed by 
the Government of Costa Rica. .\11 endeavors to biing about a modus 
Vivendi have failed. Your petitioners therefore ask that the United States 
of America inform the Governnaent of Costa Rica that such interference 



150 

will no longer be tolerated, and that it requires that the petitioners be 
restored to the peaceable possession of the land they have occupied north 
of the Sixola River, that Costa Rica refrain from all fuiiher interference 
thereTOth, and that, if any controversy should arise between your pe- 
titioners and any other American citizens concerning their respective 
interests therein, it should be decided by the Coiu-ts of the United States, 
to whose jurisdiction such a controversy properly belongs. 

Our resoiu'ces, which are not great, are being rapidly exhausted through 
loss outright of a portion of our railway supplies, the damage through 
exposure on the beach of the balance, the heavy cost of maintaining the 
plantation in order to preserve the improvements already made, the loss 
of the entire products, an immense amount of fruit having already ma- 
tured and gone to waste since the beginning of the present year. Within 
a few months the entire plantation will be in full bearing, when the pro- 
duction should reach 75,000 bunches of bananas or more per month. 
The loss then in fruit, including the cost of production and a reasonable 
profit, ■will amount to at least 145,000 per month. 

As heretofore stated, more than one hundred American citizens, all of 
whom subscribed in good faith, are interested in this undertaking, in 
which $250,000 has already been spent, the loss of whose money would 
prove a great calamity to quite a nimiber of them. We ask and confi- 
dently expect, now that Costa Rica has failed to keep its promise to make 
a reasonable arrangement with us, that our own Goverimient will take 
such steps as may be necessary for our protection. 

Dated July 28, 1905. 

Respectfully subnaitted, 
AMERICAN BANANA COMPANY. 

H. L. McCONNELL, 

Pres^ 

Everett P. Wheeler, 

Of Counsel for Memorialist, 

21 State Street, New York City. 



District of Columbia, 
City of Washington, 

Herbert L. McConnell, being duly sworn, says: I am the president 
of the American Banana Company. I have read the foregoing memorial 



151 

and know the contents thereof, and the same is true of my own knowl- 
edge, except as to the matters therein stated on information, and as to 
those matters I beheve it to be true. The som-ces of my information 
arise from my familiarity as President, with all the matters relating to 
the American Banana Company. 

Herbert L. McConnell. 

Sworn to and subscribed to before me 
this 28th day of July, 1905. 
(Seal) Anthony L. Ray, 
Notary Public, 
D.C. 



152 



COMMUNICATIONS TO AND FROM THP] STATE DEPARTMENT 
AFTER McCONNELI/S SECOND MEMORIAL. 

[Copy.] 

American Legation to Costa Eica, Nicahagua, and Salvador, 

San Jose, Costa Rica, January 29th, 1906. 

To His Excellency Senor Don Jose Astua Aguilar, 
Minister of Foreign Relations, etc., 
Republic of Costa Rica, San Jose: 

Esteemed Sir, — I have to call the attention of Your Excellency's Govern- 
ment to a cablegram received yesterday from the Honorable Secretary of 
State at Washington in relation to the status of the "American Banana. 
Company," H. L. McConnell, President. 

Said Company, as will be observed by Your Excellency, enters complaint 
of its eviction from the Sixaola Valley and Port Gadokin and the seizure 
of its property there by the Government of Costa Rica. 

When our voluminous correspondence and numerous interviews in re- 
lation to this case were closed in the early part of 1905, 1 hoped that before 
tills the question as to the sovereignty and legal jurisdiction over the Sixola. 
Valley and Port Gadokin would be settled between Your Excellency's 
Government and that of the Repubhc of Panama. But a year has elapsed, 
and no action known to me has been taken in the premises by either Gov-, 
ernment. A decision as to the ultimate sovereignty and consequent per- 
manent occupation of the territory would greatly facilitate the settlement 
of the Company's rights upon a basis of equity and justice. The cable- 
gram received from my Government enters into such detail regarding its 
position in the case that I can do no better than to quote it, caUing to the 
attention of Your Excellency the closing sentence thereof advising that a 
similar communication has been sent to the Government of the Panama 
Repubhc, which I presume will address Your Excellency's Government 
in connection therewith. 

MeanwMle permit me to call Your Excellency's attention to this case 
with the view of such a solution as will protect the interests of American 
citizens involved and agreeable to the Governments interested in the Sixaola 
Valley and Port Gadokin. 



153 

The cablegram alluded to reads as follows: — 

"Referring to questions affecting ' American Banana Company, ' it is 
represented that the Company is sufi'ering through eviction and seizm-e 
of their property in the disputed (Sixaola) territory. You will say 
that, while we do not contra vert the power of Costa Rica and Colom- 
bia or Panama m making a provisional agreement respecting admin- 
istration of that territory pending the definite settlement of its owner- 
ship, we do not cede the power of the provisional administrator to 
execute judgment in the capacity of SoA^ereign until the sovereignty 
of the territpry is adjudicated and the Courts of the Sovereign have 
passed upon the matters involved. Nor do we cede the right of either 
to prejudice the ultimate rights of American citizens therein by ad- 
verse action in advance of such definite adjucUcation. This Govern- 
ment does not undertake to determine the conflicting claims of title 
made by this C!ompany and lay other American citizens, but will re- 
serve in behalf of any injured American citizen, as against either Costa 
Rica or Panama, all rights which pertain to the territory and for the 
infringement of which its rightful Sovereign may be found responsible. 
A similar communication is made to the Government of the RepubUc 
of Panama." 

Be pleased, Mr. Minister, to receive the assurances of my most distin- 
guished consideration, and permit me to subscribe myself 
Your Excellency's most obedient Servant, 

(Signed) William Lawrence Merry, 
E. E. and M. P. U.S. A. 



No. 1142. 

V American ' Legation to Costa Rica, NicARAGtiA, and Salvadoh, 

San Jose, Costa Rica, March 7, 1906. 
To THE Honorable Elihu Root, 

Secretary of State, Washington, D.C.: 

Sir, — I have the honor to forward herewith (Enclosure No. 1) copy and 
translation of the reply of the Costa Rica Minister of Foreign Relations to 
my despatch of January 29th, communicating to him your cablegram of 
January 27th relating to the complaint of the "American Banana Com- 
pany." The answer will be noted as prolix and discursive, adding nothing 
to the subject not already understood, and, in my judgment, defaulting in the 
claim to such sovereign jurisdiction over the territory alluded to as could 
be asserted, had said territory not been in dispute between Colombia and 
Costa Rica, for it is undeniable that either by the Loubet Award or by the 



154 

Pacheco-Guardia boundary treaty, now pending with Panama, the terri- 
tory in question will ultimately be placed under the sovereign jurisdiction 
of the Panama Republic. The Minister appears not to comprehend the 
main purpose of your cablegram, which obviously intends to reserve the 
rights of any American citizen as against the ultimate sovereign of the 
territory, whenever that sovereignty may be decisively settled. His con- 
clusion, however, has the merit of correct statement. Mr. McConnell was 
about reachmg a modus vtvendi, which I had been instructed by the Hon- 
orable Secretary of State, Mr. Hay, to aid him in obtaining, when, over 
night, he decided to insist on the right to place an additional area under 
cultivation, thus changing the modus vivendi for a modus crescendi, and 
therein I cannot justly find fault with the Minister for dechning. It was 
not, in fact, a claim in accordance with my instructions or with the intent 
of Mr. Hay. The enclosure being a reply to my despatch, and the entire 
question having been already amply discussed with the Minister, both 
verbally and in ^ratten conmiunications, I deem it best to permit the 
question to rest at present vmtil you think proper to send me further in- 
structions or until the status has been changed by the action of either the 
Panama or the Costa Rica Governments. 

William Laweence Merry, 

Avierican Alinister. 
Enclosube : 

Minister Astua to Mr. Merry. 

No. 1142. 

[Translation. Enclosure No. 1.] 

Office of Secretary of Foreign Relations, 

San Jose, 3d of March, 1906. 
Mr. Minister : 

I respectfully refer to the polite note under date of January 29th of 
this year, in which Yom- Excellency was kind enough to send me a copy 
of the telegram of the 28th of the same month, which your Government 
thought proper to address to you through the Honorable Secretary of 
State, referring to a claim of Mr. H. L. McConnell, fully discussed last year 
in writing and verbally, and which it appears should have been considered 
as entirely terminated, inasmuch as through the medium of the Costa 
Rica minister at Washington, and also before the Legation, over which 
you preside with so much skill and merit, my Government explained the 



155 

facts of the case, and demonstrated that it had worked with indisputable 
reason and right, and since in the note of June 7th, 1905, the last received 
in this matter until now, I had the honor to communicate to you that the 
said gentleman voluntarily and by virtue of a change of purpose, the mo- 
tive of which I have not succeeded in becoming acquainted with, had 
notified me, in person, that he had abandoned the pending negotiation 
solicited by him, although he had accepted already, in its larger part, as 
Your Excellency knows, the one under way. My Government being 
mindful of the friendly interveniion of Yom' Excellency to establish a 
modus Vivendi which, upon a basis of equity, without injmy to the 
territorial sovereignty of Costa Rica or prejudice to thuxl parties and 
within the possibilities of our fiscal law, would govern the occupancy by 
McConnell of the lands which he has endeavored to make his own in the 
zone of Gandoca and along the left bank of the river Sixola, by virtue of 
an usm-pation of ownership, the featm-es of which as a transgression against 
the national property are clear by any criterion, and which, at the same 
time, would lend itself by giving it a retroactive effect to relieve him of 
the charge which exists against him of having committed in the country 
acts of smuggling in its most serious form, that is the clandestine impor- 
tation of merchandise by the Gandoca, which is not a port qualified by 
our laws for maritime traffic. 

Your "Excellency thought proper to call my attention to the circumstance 
that the Secretary of State in Washington communicated also the said 
cablegram to the Government of Panama, and even if the reply which the 
latter must give is obvious, in view of the fact that it is evident from 
authoritative documents that the said nation recognizes the total and exclu- 
sive jurisdiction, or in other words the sovereignty of Costa Rica in said 
lands, I thought it expedient to delay my reply to Your Excellency while 
awaiting the declaration which that Republic should make in this respect, 
and this explains why this office has delayed the reply to the important 
note which is the cause for the present one, which I have the honor of 
addressing to you, without my knowing as yet that which the Secretary 
of Foreign Relations of Panama may have seen fit to express. 

In the cablegram cited, there appeared the following propositions, which 
I must treat separately and in the same order in which they are given 
by the Honorable Secretary of State: — 

1. That the question under consideration in this incident refers to the 
American Banana Company; 

2. That in the territory in dispute (that of the Sixola) my government 
has taken possession of some property of the said Company; 

3. That at the present time there does not exist between Costa Rica 



156 

and Panama any arrangement governing the ownership and administra- 
tion of the territory mentioned, while the boundary '^question is being 
definite!}^ settled between the two countries; 

4. That while the boundary is not established in a positive manner, the 
Government of the United States denies that Costa Rica or Panama possess 
faculty as sovereigns, to carry into execution judgments referring to the 
appropriation of such lands by their occupants, and that it does not admit 
either that the right which American citizens claim to have acquired, by 
alleging acts of their own consummated before the determination of the 
boundary, may in any form be affected by the exercise of territorial sov- 
ereignty of Costa Rica or Panama; 

5. That the Government of Your Excellency does not undertake to 
determine the preference between the titles which the American Banana 
Company may allege, and the opposing titles that other American citizens 
may allege concerning the lands of the said zone, but that it reserves the 
right to protect any of them against the damage that ma}^ accrue to them 
from the territorial administration which Costa Rica or Panama might 
exercise in the premises. 

With the high consideration due to the illustrious government of the 
United States, and maintaining for Yom- Excellency all the respect to 
which you are entitled, I shall now lay before you the observations of my 
govermnent concerning every one of the points enumerated, in the cer- 
tainty that they will suffice to make clear in the mind of the Secretary of 
State the justice of the case of Costa Rica, and also to show once more the 
correctness of the proceedings of my goverimient in its relations with the 
foreigners who under the protection of its laws, yet in harmony with 
them, seek fields for industrial activity and for a place for its initiative, 
a correctness of proceeding which is not impaired by the slightest injury 
to the right of others, and which has gained for Costa Rica the high opinion 
in which it is held as a hospitable land amongst the nations which favor 
her with their friendship, and of which, it pleases me to believe, the Gov- 
ermnent of Yom- Excellency has positive proof in its dealings with this 
Republic. 

Since your legation, without doubt, has taken note of the complete 
history of the McConnell affair, having had opportunity of following in 
detail its com'se, in the interviews that have taken place and by means 
of the pro memorias and other documents which in due season I thought 
proper to communicate to you, my task will not be long nor difficult, 
because it will be confined, to a great extent, to my referring to that which 
Your Excellency akeady knows and of which you possess documentary 
evidence. 



157 



First Point. 

The Honorable Secretar}' of State of the Government of Youi' Excellency 
has been incorrectly informed as regards the personality of the claiming 
party. In Costa Rica no company is known that bears the name of "Amer- 
ican Banana," nor has IVIi-. McConnell presented himself to my govermnent 
in the character as president or manager of any company, a matter of 
which Yom- Excellency can convince himseK by merely referring to the 
memorial addressed by him to this ofHce on the 5th of April, 1905, which 
evidences with his own words that both when occupying the area to which 
the question refers, and when asking my government for the grant of a 
title which would give legal standing to the unlawful possession exercised 
by liim, he acted for hiuLself, and not for any other or others as jointly 
interested. 

And although I do not attribute any very great significance to the 
fact whether McConneU, when infringing our customs laws and usurping 
state lands, did so in his own name and for his sole benefit, or as 
represent alive of the "American Banana Company," and for the benefit 
of the latter, yet it is proper that such a cu-ciunstance should not pass 
unnoticed, because it shows that in this part, as well as in the rest, 
the claimant did not relate the facts of the case with due exactness, 
having, on the contrary, shaped them for his intention to produce, 
with the most powerful government of Yoiu- Excellency, an impression 
favorable to his intention of makmg his own that which can lawfully 
become such only by way of an acquisition in conformity with oiu- laws, 
and presented them so as to neutralize the acts of punishable importation 
committed by him. ■ 

Second Point. 
It is true that tlie Costa Rican authorities, after learning of the fact 
that McConneU had usurped a considerable area of land belonging to the 
state and that, violating our customs law, he introduced merchandise by 
way of the unqualified port of Gandoca, ordered this gentleman, in com- 
pliance with their duty, to abstain from exercising acts of ownership on 
land which is not his and as a result of an unlawful traffic, seized the 
goods introduced by him with audacious con+empt of om- fiscal law; but 
both actions are the logical and necessary consequence of the exercise of 
the jm-isdiction of the State within the territory that belongs to it, accord- 
ing to its present boundaries; a jurisdiction which, according to the prin- 
ciples of private as well as international law, implies, in order to be real 



158 

and actual, the right of exchision and defence of one's property and the 
power of causing the laws of the Republic to become imperative for all 
who live therein. It is, therefoi-e, evident that my government has not 
deprived the claimant of any property in Gandoca, because he did not 
possess any there; that its action has been confined, on the one hand, to 
preventing the continuance of usurpation of the national domain in a 
region which, at the jDresent time, belongs to the public treasmy, and 
which could not be taken by the irregular and unlawful means of an occu- 
pation de facto, — and on the other hand, to making effective the laws 
which govern smuggling in the importation of goods; which goes to show 
that an erroneous statement has been made to the government of Your 
Excellency, when it was informed that my government had appropriatetl 
any property of Mr. McConnell or of the said "American Banana Com- 
pany." 

Third Point. 

I likewise attribute to deficient information given by the claimant to 
the honorable Secretary of State, the assertion contained in the cablegram 
as to the non-existence at the present time of an arrangement between 
Costa Rica and Panama as to which of the two nations shall exercise the 
territorial sovereignty in the region of the Sixola, until the boundary 
treaty which is awaiting the approval of their governments and legisla- 
tures, shall determine definitely the boundary. 

Yom' Excellency is well aware, in the first place, that, for a very long 
time, and by virtue of the statu quo in force between the two countries, 
the dividing line between them is that of the Sixola, Yurciuin, and Rio 
Golfito, which leaves on the Costa Rica sitle the region to Avhich McConnell 
refers, and in the secoiid place that the government of Colonibia before, 
during a long series of years, and now that of the Republic of Panama, 
consider said line as the frontier of the territory of Panama, as is clearly 
expressed in resolution Number 28 of the OfRce of the Secretary of State 
and Foreign Relations of the latter of said countries, issued on the 2nd of 
August, 1904 and published in its Official Gazette of the 23rd of the same 
month, which among other things says "Although by the arbitration de- 
cision handed down by the President of the French Republic, Gandokin 
(region of the Sixola) forms a part of the territory of Panama, this arbitra- 
tion decision has not been carried into execution as yet, and as long as 
this does not take place, the Government of this Republic (Republic of 
Panama) does not exercise jurisdiction in that place, because the same is 
situate between the boundaries of the territory, the dispute over which 
gave rise to the arbitration decision, and because the statu quo agreed on 



169 

so demands it. Therefore the Costa Rican government is the present 
possessor of the place referred to, just as the government of Panama is 
the present possessor of a part of the Costa Rican territory on the Pacific. 
The execution of the arbitration decision will give to each sovereign the 
possession of the territory that belongs to it, and from that time forth 
the statu quo will cease; but as long as this does not take place, Gandokin 
will remain under the jurisdictional action of Costa Rica." 

From what has been said, it follows that an effective and perfect ar- 
rangement exists, not of recent date, but existing for a long time, con- 
cerning the exercise of the sovereignty in the region under dispute, to which 
the esteemed cablegram transmitted to Your Excellency alludes ; effective 
because it has its origin in the will of the two nations interested therein 
and because it concerns a matter exclusively of their own, and perfect 
because aside from what has been said it has been confii'med by the action 
of their governments. 

Fourth and Fifth Points. 

That which I have just stated, correcting the statements concerning the 
extent and scope of the jurisdictional sovereignty of Costa Rica in its 
southern region, leaves no doubt whatsoever as to the value and legal 
truth of the following conclusions: the first is that there exists a present 
boundary whicli divides the territory of Costa Rica from the territory of 
Panama, for all the effects of the internal law of both countries, and from 
the point of view of the international relations between tlie two republics, 
and with the other nations of the world, a boundary estajalished by the only 
parties whom it affects and who could fix it, respected by them m the course 
of the years, sanctioned by direct acts of their governments, and on the 
efficiency of which for the same reason no discussion is admissible. The 
second is that the provisionaL character of the said line of demarcation 
does not operate in any way against the exercise of the sovereignty of my 
nation as far as the very bank of the Sixola and the Yurquin, since the 
only thing that this quality implies is the possibility of a modification in 
the frontier by virtue of a treaty, but not a limitation of the actual terri- 
torial ownership as long as in the absence of that agreement the statu quo 
lasts, as is declared by Panama.' Such sovereignty and dominion of 
Costa Rica in the said region would be wholly a nominal and absiud 
thing if they were not accompanied with the power of defending the 
territory involved, of legislating on occupancy, possession and appro- 
priation of the lands which it compi'ises, on the commercial traffic, on the 
order and security of the citizens, and other interests of civil life, and at 
the same time with the power of dispensing justice through the courts in 



160 

controversies relative to the property and possession of lands and in all 
kinds of transgressions of the national laws. 

Therefore my Government has viewed with the greatest surprise the 
opinion expressed in said cal^legram on this matter, and which limits itself 
to asserting that the courts of Costa Rica have no jurisdiction in the lands 
of Gandoca and the Sixola River; that is, that my nation has no sovereign 
power there. If it is asserted that its judges cannot pass any judgments 
nor order the carrying into effect of anything with regard to the things that 
occur in that integral part of its present territory, the predominance of i:s 
laws and the power of its authorities would be absolutely and unreservedly 
repudiated, because it cannot be understood what Vvould be the object of 
one or the other without the iwwei' of deciding with certaintj^, that is, 
effi.ciently, the corresponding controversies, so that the axiom that the 
courts are the law brought into effect and life, would be rendered futile; 
whereby ^^'ithout remedy the inadmissible result would be reached that 
that region is outside of all jurisdictional power, in view of the fact that 
Panama without hesitation attributes it to Costa Rica, and that the Hon- 
orable Secretary of State is of the opinion that neither nation possesses it. 

I am inclined to believe that because of the brevity of the text of the 
cablegram, this office has made some mistake in interpreting it, because 
ni)' government considers it as an impossible thing that the govermncnt 
of Your Excellency, which is so eminently possessed of the qualities of 
wisdom, nobility and spirit of justice should have the intention of failing 
to recognize the sovereignty of my country over a part of the territory 
which it has governed and is governing Avithout restrictions and in agree- 
ment with the Republic of Panama, which not only assents to the exercise 
of our sovereignty, but considers it undeniable, and has so evidenced in 
its acts of administration, as has been expressed above, adding on its part 
the very important supporting opinion that by virtue of the statu quo it 
exercises tlie same power in the lands which the arbitration decision of the 
President of France attributes to Costa Rica on the side of the Pacific and 
to the south of the Golfito river. 

To sum up: Mr. Minister, I have the honor of informing j^ou in order 
that Your Excellency may deign to transmit it to your esteemed govern- 
ment, that the territory of Gandoca and the Sixola River, from the ver}' 
bank of this river, and of the Yurquin have been and are now subject 
to the sovereignty of Costa Rica; that Mr. H. L. McConnell has at- 
tempted without title in virtue of his own will alone, by means of an occu- 
pancy vdiich our laws and universal right qualify as the act of an usurper to 
appropriate as lord and master a great area of that region; that the same 
gentleman imported merchandise clandestinely by the unopened port of 



161 

Gandoca, for which purpose he chartered ships which lie caused to arrive 
at that point; that my government in the exercise of the national 
sovereignty, and under the necessitj^ of inculcating respect for its laws 
acted through the fiscal authorities to proceed agaiast that unlawful action 
and smuggling, and notified Mr. McComiell that he could not possess or 
make use of the lands mentioned since he had not acquired them in ac- 
cordance with our laws; and that in the course of time said claimant 
addressed to this office a memorial in which he solicited important conces- 
sions of land in those places, a memorial which my government, to mani- 
fest its friendship for the government of the United States and in consid- 
eration of the esteemed recommendations of Your Excellency, considered 
with good will, giving as result thereof the reply addressed by this office 
to the said gentleman on the 12th of April, 1905, in which it proposed to 
him the leasing of said lands, up to the amount of two thousand hectares 
for the term of twenty-five to thirty years, subject only to the restriction 
of the rights acquired therein and to the reservations indispensable in the 
case. Said proposition was not accepted by McConnell, who after replying 
with a new plan of settlement unacceptable in almost all its parts, and 
which gave rise to a series of interviews at this office, finally agreed to the 
greater part of the clauses of a modus vivendi, which was communicated to 
Your Excellency, and in which he reached the realization of his wishes 
and in which my government had the satisfaction of attaining the possi- 
bility of giving to that of Your Excellency a proof of its friendship, favor- 
ing, in spite of what had preceded in the case, the interests of an American 
citizen; Mr. McComiell, however, just at the moment when the negotia- 
tions were on the point of coming to a conclusion, and only an agreciuent 
in matters of detail was necessary, informed me of his decision to 
abandon all discussion, leaving matters as they were in the beginning, in 
the irregular condition to which I have already referred. 

It is necessary therefore in justice to recognize that my Government, 
aside from not having committed any act contrary to what is prescribed 
by its laws and the rules of international law affecting private rights, 
lent itself to making a concession to the claimant, in which the desire is 
evident to act in a mamicr agreeable to the govermiient of Yoin- Excel- 
lency, although protecting, as is but proper, the rights of the nation so 
far as its sovereignty and the respect for its fiscal regulations are con- 
cerned; and I hope that by means of this note and the other data con- 
nected with it, which I request Your Excellency kindlj^ to communicate 
to the Honorable Secretary of State at Washing-ton, I shall succeed in 
convincing the illustrious and upright judgment of the Government of 
the United States of the fact that mine has acted in the matter in perfect 



ltJ2 

harmony with its powers as sovereign and without disregarding any right 
of the said company, or of Mr. McConncll, treating the latter, on tlie con- 
trary, with particular generosity. 

It is my duty to send Your Excellency new copies* of the memorial of 
Mr. McComiell and of the reply of this office, bearing the date of the 
month of April of last year, and I also jjeg to offer you anew the homage 
of my respect and distinguished consideration. 

Jose Astua Aguilar. 

To His Excellency, Mr. William Lawrence Merry, 
Minister Plenipotentiary of the United States, 

City. 



American Legation, San Jose, Costa Rica, 

March 20th, 1906. 
To His Excellency Senor Don Jose Astua Aguilar, 
Minister of Foreign Relations, etc.. 
Republic of Costa Rica, San Jose: 

Esteemed Sir, — I have the honor to forward herewith copy in code 
translation of cablegram received to-day from the Honorable Secretary 
of State at Washington sent me after reading Your Excellency's despatch 
of the 3rd inst., which I forwarded on the 8th inst. with translation. The 
wording of the cablegram is so definite that I can add little thereto of 
value as an argument. Mr. McComiell claims to have a prior title to the 
lands in dispute from the Colombian Government. Consequently, it 
seems to me a logical necessity that Your Excellency shall successfully 
disprove said Colombian title in order to make your argument good. 

The fact stated by the Honorable Secretary of State that, either by the 
Loubet Award or by the Guardia-Pacheco Treatj'^ of Limits, said lands 
are to be placed under the exclusive sovereignty and jurisdiction of the 
Panama Republic, has much weight in the argument against the claim 
of exclusive jurisdiction at this time, as claimed by Your Excellency. 

With assurances of my most distinguished consideration, I beg to sub- 
scribe myself 

Your Excellency's most obedient servant, 

William Lawrence Merry, 
E. E. and M. P. U.S.A. 

* No new copies thus far received. (Mr. Merry's note.) 



163 
[Copy.] 

San Jose, Costa Rica, March 20, '06. 

Code Translation Cablegram received this day from the Honorable 
Secretai-y of State, Washington: — 

"It appears on an examination of the pending treaty that, if that treaty 
is ratified, the warehouses and rights of the proposed piers of American 
citizens will be within the territory of Panama. Company claims title 
by what they allege to be a vahd location under the laws of Colombia be- 
fore the separation from Panama. We should deem it a \dolation of the 
rights of the American citizens, possessors of this property, to interfere 
with their possession and enjoyment except upon the judgment of a court. 
We must insist that the officers of Costa Rica have no more right to do 
this than would the officers of Panama." 

G. 

No. 37. 

Department of State, 
Washington, April 16, 1906. 

{This same communication was sent to Minister Merry) 

Charles E. Magoon, Esquire, etc., etc., etc., 
Panama. 
Sir, — The Department has again taken up the complaint of H. L. Mc- 
Connell and the American Banana Company against the Government 
of Costa Rica, and given it most careful attention. As a result of such 
consideration, the following telegram was sent you on March 19 last: — 

"It appears on an examination of the pending treaty that, if that 
treaty is ratified, the warehouses and sites of tlie proposed piers of 
American citizens will be witliin the territorj^ of Panama. The com- 
panies claim title by what t!:ej' allege to he a valid location under the 
laws of ColomJjia before the separation of Panama. We should deem 
it a -sdolation of the rig'ats of tlie American possessors of this property 
to interfere with their possession and enjo}nnent except upon the 
judgment of a coiu't, and we must insist that the ofHcers of Costa 
Rica have no more right to do tb.is than would the officers of Panama." 

"\'\Tiile some of the details of the case are involved in controversy, the 
Department would innate your attention to three considerations which 
appear to be beyond dispute, and which, in the present aspect of the 



164 

situation, the Department regards as of fundamental, if not of controlling, 
importance. 

The first of these is that uruler tlic Loubet decision of 1900, accepted as 
final by both Colombia and Costa Rica, the territory included in the 
McConnell plantation was awartled to Colombia (now Panama), and be- 
came subject to the jurisdiction of that country. The second is that Mr. 
McComrell in 1903 entered upon a portion of these lands, planted a large 
area with banana-trees, built houses, and started the construction of a 
tramway, expending large sums of money in his enterprises, and he alleges 
that his proceedings were based upon the authority of certain laws of 
Colombia relating to uncultivated lands. The tliird consideration is that 
the pending treaty of March 7, 1905, between Costa Rica and Panama, 
defining the boundary line between those Republics, will, when drawn, 
include the McCoimell concession within the jurisdiction of Panama. 

The Department is not unmindful of the contention of Costa Rica that an 
understanding has existed between that State and Panama whereby the 
former has retained temporary possession and administrative control over 
the district, and pending the ratification of the treaty of March 7, 1905, 
exercises poUce powers and other general attributes of de facto sovereignty 
within the territory. At the same time it is undeniable that the de jure 
sovereignty has been in Colombia and Panama since the Loubet award, 
accepted as it is by Panama and Costa Rica, so that either by virtue of 
tliat award or of the pending boundary treaty the territory toII ultimately 
come under the jurisdiction of Panama. Meanwhile certain American 
citizens, acting upon the assurances of the authorities of Colombia and 
Panama, and in accordance with the laws of those States, have gone into 
this territory, expended large sums in developing it, and by virtue of such 
acts have acquired certain possessory rights thereunder and are entitled 
to protection therein. In the adjustment of any confUcting claims of title 
which may arise or have arisen it would be improper for this Department to 
interfere. But, on the other hand, after rights, possessory or otherwise 
in this property have been acquired in good faith by American citizens and 
have become vested in them, the Department is of opinion that they should 
not be divested except by due process of law, by ejectment or other ap- 
propriate legal action. 

In the Department's conception of this matter, Costa Rica exercises at 
present a temporary de facto sovereignty over the territory included in 
the McComiell concession, subject of right to be divested at any time at 
the will of Panama but actually continuing until such time as the pending 



165 

boundary treaty is ratified. She exercises the powers of government that 
are necessary for the orderly administration of the district, but should not 
use this sovereignty in such a way as to impair the rights of the de jure 
sovereign of the territory. Her functions of government are limited by 
her teniu'e, which is of a temporary and precarious character. Her duty 
is to preserve the property, not to destroy it, and hand it over to her suc- 
cessor without the commission of a.ny acts tending to impair the ultimate 
rights of the de jure owner. It is obvious, for instance, that it would 
have been an unwarranted exercise of sovereign power for Costa Eica to 
grant a concession to McConnell for the construction of liis railroad beyond 
the termination of the de facto sovereignty of Costa Rica. In a word, Costa 
Rica stands in the position of a usufructuary entitled to the fruits and 
profits of the territory during the period of tenure, and it cannot be ad- 
mitted that Costa Rica can in any way destroy or impair the substance of 
the usufruct. In Uke mamier it is equally clear that the title to property 
rights in this territory acquired since the Loubet award are determinable 
according to the laws of Colombia and Panama, and it follows that Costa 
Rica can rightfully exercise no jurisdiction within the territory which 
Panama could not exercise ; and as Panama camiot rightfully deprive pos- 
sessors of title properly acquired under Colombian laws which remained 
in force after the secession of Panama, without due process of law, it would 
be equally unjust for Costa Rica to attempt to do the same thing. 

In considering the present connection of Panama with the territory in 
question, it would appear that that State has consented that Costa Rica 
continue as the de facto sovereign until the ratification of the treaty. If 
Panama should interfere and seek to exercise at present jurisdiction North 
of the Sixola River, tlus would be inconsistent with her recognition of 
Costa Rica's temporary sovereignty in that district. In the view of the 
Department, as long as the latter government is the sovereign in possession, 
whatever attributes that accompany or attend possession should be con- 
ceded to her, including the right to control by taxation or otherwise im- 
portations, etc., at Gadocan. But the ultimate attributes of sovereignty 
belong to the ultimate o'mier, and for this reason it is proper that Panama 
should see to it that rights and titles which have accrued concerning lands 
within this area should not be prejudiced by the State having accidental 
and temporary jurisdiction. It is suggested that tlus result may be reached 
by discreet representations by Panama to Costa Rica, perhaps by remon- 
strance or otherwise, rather than by a physical attempt to assert such 
jurisdiction. 



166 

You are instructed to call the situation as above set forth, together with 
the ^^e^vs of the Department, to the attention of the Government to which 
you ai-e accredited, and to sa}^ that this Government insists that the prop- 
erty of Mr. McConnell and those whom he represents be protected and pre- 
served, without any destruction thereof, until such time as the ultimate 
rights of the parties may be passed upon by a court or courts of compe- 
tent jurisdiction. 

In this connection, however, it is proper to state that the Department 
disclaims any intention to interfere in tliis case to the prejudice of the rights 
of the United Fruit Company, or any other American interest already 
accjuired in the territory immediately in ciuestion. 

I am, Sir, 

Your obedient servant, 

Elihu Root. 

Note. — Same instruction, inidatis mutandis, sent to Merry, Costa Rica. 

Panama, 

Received April 27th, 1906. 
Secretary of State, Wasliington: 

In conference ■ndth the President Guardia and Obaldia conceniing 
cable concession, reference to jurisdiction over territory north Sixaola 
River was made. Guardia said Panama conceded to Costa Rica the 
right to exercise complete jurisdiction, and Panama has no intention to 
withdraw said right until final action upon pending boundary treaty. 
He admitted that Panama had collected tariff duty on railroad material 
brought by American Banana Company from the United States to Gadocan, 
thence to Bocas del Toro, but denied that they had collected or attempted 
to collect duty on any or any part cargo not landed at Bocas del Toro. . . . 

Magoon. 

Panama. 

Received May 2, 1906. 
Secretary of State, Washington : 

Held conference mth the President and Secretary of State for Foreign 
Affairs concerning matters affecting American interests in the tenitory 
Sixaola. Secretary of State for Foreign Affairs declares that Costa Rica 
has absolute jm-isdiction in tliis territory. Declares further that matters 
in dispute are subject for courts to pass upon after jmisdiction reverts 



167 

to Panama upon ratification of boimdaiy treat}-. Declares that Panama 
cannot interfere or suggest any course of action to Costa Rica in these 
matters any more than slae could permit Costa Rica to suggest proper 
course in disputed territory upon Panama jurisdiction on Pacific coast. 
Have forwarded to you report on conference to-day. 

M.\GOON. 

American Legation, San Jose, Costa Rica, 

April 27th, 1906. 
To His Excellency Sexor Don Jose Astu.^ Aguil.^r, 
Minister of Foreign Relations, etc., etc., 
Republic of Costa Rica, San Jose: 

Esteemed Sir, — Referring to this Legation's Despatch No. 269 of March 
20, 1906, I beg to say that the Department of State at Washington has 
again taken up the complaint of H. L. McConnell and the .American Banana 
Company against the Government of Costa Rica, and, after giA^ing it most 
careful attention, instructs me in a despatch No. 694, dated Api-il 16, 1906, 
to again most respectfully submit its views and conclusions to Your Ex- 
cellency's honorable consideration. 

"Wliile some of the details of the case ai-e involved in controversy, my 
Government would imdte Your Excellency's attention to three considera- 
tions which appear to be beyond dispute, and which in the present aspect 
of the situation my Government regards as of fundamental, if not of 
controlUng, importance. 

The fu'st of these is that under the Loubet decision of 1900, accepted as 
final by both Colombia and Costa Rica, the territoiy included in the 
McConnell plantation was awarded to Colombia (now Panama), and be- 
came subject to the jurisdiction of that country. The second is that 
McConnell in 1903 entered upon a portion of these lands, planted a large 
area with banana-trees, built houses, and started the constniction of a 
tramway, expending large sums of money in his enterprise, and he alleges 
that his proceedings were based upon the authority of certain laws of 
Colombia relating to uncultivated lands. The third consideration is that 
the pending treaty of March 7, 1905, between Costa Rica and Panama, 
defining the boundary Une between those RepubUcs, vnll, A\-hen drawn, 
include the McConnell concession within the jurisdiction of Panama. 

My Government is not unmindful of the contention of Costa Rica that 
an understanding has existed between Your Excellency's Government and 
that of Panama, whereby the Government of Costa Rica has retained pos- 



168 

session and administrative control over the district, and pending the~rati- 
fication of the treaty of March 7, 1905, exercises police powers and other 
general attributes of de fado sovereignty witliin the territory. At the 
same time it is undeniable that the de jure sovereignty has been in Colom- 
bia and Panama since the Loubct award, accepted as it is by Panama 
and Costa Rica, so that either by virtue of that award or of the pending 
boundary treaty the territory will ultimately come under the jurisdiction 
of Panama. Meanwhile certain American citizens, acting upon the 
assurances of the authorities of Colombia and Panama and in accordance 
with the laws of those States, have gone into this territory, expended large 
sums in developing it, and by virtue of such acts have acquired certain 
possessory rights thereunder, and are entitled to protection therein. In 
the adjustment of any conflicting claims of title which may arise or have 
arisen my Government does not pretend to interfere. But, on the other 
hand, after rights possessory or otherwise in this property have been ac- 
quired in good faith by American citizens, and have become vested in 
them, the State Department at Washington is of opinion that they should 
not be divested except by due process of law, by ejectment or other ap- 
propriate legal action. 

In my Government's conception of this matter, Costa Rica exercises at 
present a temporary de facto sovereignty over the territory included in 
the McConnell concession, subject of right to be vested at any time at the 
wiU of Panama, but actually continuing until such time as the pending 
boundary treaty is ratified. She exercises the powers of Government that 
are necessary for the orderly administration of the district, but should not 
use this sovereignty in such a way as to impair the rights of the de jure 
sovereign of the territory. Her functions of government are hmited by 
her tenure, which is of a temporarj^ and precarious character. Her duty is 
to preserA^e the property, not to destroy it, and hand it over to her succes- 
sor without the commission of any acts tending to impair the ultimate 
rights of the de jure owner. It is obvious, for instance, that it would have 
been an unwarranted exercise of sovereign power for Costa Rica to grant 
a concession to McConnell for the construction of his railroad beyond the 
termination of the de facto sovereignty of Costa Rica. In a word. Your 
Excellency's Government stands in the position of a usufructuary entitled 
to the fruits and profits of the territory during the period of tenure, and it 
caimot be admitted that Costa Rica can in any way destroy or impair 
the substance of the usufruct. In like manner it is equally clear that the 
title to property rights in tliis territory acquii'ed since the Loubet award 



169 

are determinable according to the laws of Colombia and Panama, and it 
follows that Costa Rica can rightfully exercise no jurisdiction within the 
territory which Panama could not exercise; and as Panama cannot right- 
fully deprive possessors of title properly acquired under Colombian laws, 
which remained in force after the secession of Panama, without due process 
of law, it would be equally unjust for Costa Rica to attempt to do the same 
thing. 

In considering the present connection of Panama with the territory in 
question, it would appear that that State has consented that Your Excel- 
lency's Government continue as the de facto sovereign until the ratification 
of the treaty. In the view of my Government, as long as the Government 
of Costa Rica is the sovereign in possession, whatever attributes that 
accompany or attend possession should be conceded to her, including the 
right to control, by taxation or otherwise, importations, etc., at Gadokin. 
But the ultimate attributes belong to the ultimate owner, and rights and 
titles which have accrued concerning the lands within this area should not 
be prejudiced by the State having accidental and temporary jurisdiction. 

My Government insists that the property of Mr. McConnell and those 
whom he represents be protected and preserved, without any destruction 
thereof, until such time as the ultimate rights of the parties may be passed 
upon by a court or courts of competent jurisdiction. 

The Department of State at Washington disclaims any intention to in- 
terfere in this case to the prejudice of the rights of the United Fruit Com- 
pany or any other American interest already acquired in the territory 
immediately in question. 

With assurances of my most distinguished consideration, 
I beg to remain Your Excellency's 

Most obedient servant, 

James G. Bailey, 
Charge d' Affaires ad interim. 

No. 1164. 

Amebican Legation to Costa Rica, Nicaragua, and Salvadoe, 
San Jose, Costa Rica, June 6, 1906. 

To THE Honorable Robert Bacon, 

Acting Secretary of State, Washington, D.C. : 

Sir, — Referring to Department's No. 694, dated April 16th last, regard- 
ing the complaint of H. L. McConneU and the American Banama Company 



170 

against the Government of Costa Rica, I have the honor to transmit here- 
witli (Enclosure No. 1) copy and translation of this Government's reply 
thereto, from wMch it will be seen that it adheres to its former position in 
the matter. 

The translation is a very poor one, but, as the mail closes to-day, an 
effort to have a new one made would probably delay its arrival at the 
Department too long, as the mail might not leave again for a week. 

Mr. H. B. Mendenhall, of Mobile, Secretary of the American Banana Com- 
pany, arrived here May IStli, holding the company's Power of Attorney, 
with the view of reacliing some satisfactory terms of agreement, if possible, 
with the Costa-Rican Government. 

On May 21st I accompanied liim to the foreign office here, introducing him 
to the Minister for Foreign Affairs (Mr. Luis Anderson), since which they 
have had a number of inter^^ews in which Mr. Mendenhall has been informed 
that the Government cannot enter into any terms of agreement with his 
company afi'ecting the present status of the property, for the reason that 
the lands in question, by virtue of denouncement according to and under 
the laws of Costa Rica, belong to the United Fruit Company, an American 
corporation, and is, therefore, entitled to the protection of the Costa-Rican 
Government. 

The Foreign Minister has, however, expressed a willingness to enter into 
any new contract or agreement with the American Banana Company that 
does not in any way compromise or involve the territory in controversy 
between said Company, the United Fruit Company, and the Costa-Rican 
Government. 

With assurances of my highest consideration, I have the honor to remain. 
Sir, Your most obedient sei-vant, 

James G. Bailey, 
Charge d' Affaires ad interim. 
Enclosures. 

[Translation.] 

Office of the Secret.\ry of Foreign Relations, 

San Jose, May 26th, 1906. 

To THE Honorable the Charge d'affaires of the U. S., City: 

Distinguished Sir, — I have before me your esteemed communication ad- 
dressed by you to my predecessor in tins office, Don Jose Astua Aguilar, on 
the 27th of April last. 



171 

The unavoidable duties of this office, owing to the reorganization of the 
personnel of tliis office, and also to the necessity of informing myself care- 
fully of aU the details of the matter to which your memorandum refers, 
have, much to my regret, delayed until now the present reply. 

In said communication number 270 you explain that the State Depart- 
ment at Waslungton has again taken into consideration the claim of Mr. 
H. L. McConnell and of the Anierican Banana Company against the Gov- 
ernment of Costa Rica, and that, after careful study thereof, has seen fit 
to communicate to you instructions whereby you are to submit to my 
Goverimient three points of the question, which in the valued opinion of 
the State Department possess pai'amount importance and decisive influ- 
ence in the matter. 

The first observation submitted by the Department at Washington 
through your esteemed intervention, and from which it is deduced that the 
Government of Costa Rica does not possess any legal ground to proceed as 
it has done against the infringements and usurpations committed by Mr. 
McConneU, is that " according to the decision rendered by His Excellency 
the President of the French RepubUc, accepted as final both by Costa Rica 
and Colombia the land in wliich are located the plantation and other 
works of McConnell, which have caused this controversy, was adjudicated 
to Colombia, now Panama, and is subject to the jurisdiction of that 
country." 

Permit me most respectfully to call your esteemed attention to the 
main import of tliis assertion: Costa Rica has not accepted as yet, as a 
final decision of its controversy on the boundaries with the Republic of 
Colombia, the award of His Excellency Mr. Loubet. Far from that, — 
as soon as my Government obtained knowledge of this most important 
act, it declared on the 29th of September, 1900, to the arbitrator, through 
its legation at Paris, that Costa Rica interpreted the first section of the 
executory part of the. award in the terms expressed in the said declaration. 
Through His Excellency the Secretary of Foreign Relations, Mr. Delcasse, 
the arbitrator deigned to reply to the representation submitted by Costa 
Rica, in terms of thorough understanding, and m-ged both parties that 
they, obedient to the spirit of conciliation and good understanding wliich 
had prevailed until then, should endeavor to settle the matter, since the 
arbitrator had only been able to fix the frontier by general indications. 
Subsequently, in a connnunication addressed by this Department to the 
Secretary of Foreign Relations of Colombia, dated the 27th of July, 1901, 
my Govermnent made known to that at Bogota the attitude taken 



172 

by Costa Rica concerning this important matter, declaring that "any 
interpretation different from that given by Costa Rica and which, by im- 
paiiing its undisputed rights, would go beyond the clauns of Colombia 
under htigation, would vitiate the force of the arbitration decision." 

The statement submitted to the arbitrator and the said communica- 
tion, the text of which you will find in full in the document which I 
have the honor of including herewith, which after all are nothing else but 
the expression of the non-conformity of Costa Rica concerning certain 
details closely related to the judgment, whose scope and efficiency they 
might affect, show with entire clearness that the award has been far from 
being accepted unconditionally as final settlement of the controversy on 
the frontiers. 

We are, therefore, in the position that, after the communication of the 
27th of July which specified the attitude of Costa Rica in so far as the 
arbitratral award is involved, the situation between Costa Rica and 
Colombia is one of mere expectation, nothing whatever having been 
done which could be construed as acceptance of or submission to the 
award rendered. This matter was not again dealt with specially between 
the countries interested until the celebration of the treaties at Panama, 
one of which had for its very object the stipulation of submission to the 
decision, on the part of the parties interested. 

It is only proper to note here that, as communicated in due season to 
His Excellency James Barrett, Minister Plenipotentiary of the United States 
to the RepubHc of Panama, by the plenipotentiaries who concluded said 
treaties, there is an intimate relation between the said treaties, both 
because of the date on which they were signed, wliich itself constitutes 
the unity of the act, and because of the considerations which underhe all- 
ot them, and from these considerations taken together, is to be inferred 
the purpose of the contracting parties to make the three instruments 
into interdependent acts having for object one and the same end. From 
this must be deduced that, although the first of said treaties has for object 
the recognition of the award of the arbitrator, it is only on the condition 
sine qua non that the stipulations contained in the other two treaties be 
compUed with. 

Moreover, it must be borne in mind that up to the present moment 
the said treaties do not possess any legal force whatever, since they are 
awaiting as yet the legislative approval which, as a fundamental necessity 
for both Republics, international treaties require to become valid (article 
65, section 4, Constitution of Panama; article 73, section 4, Constitution 



173 

of Costa Rica), and as long as that approval and the exchange stipulated 
are not effected, the acceptance of the boundary award is not a definitely 
settled matter, and consequently it cannot be claimed that the arbitratral 
award establishes a right in favor of Eanama over the land arbitrarily 
occupied by Mr. McConnell. 

The situation, therefore, of the land which is the subject-matter of the 
claim, so far as it involves jurisdiction, was and is the one which is fixed by 
the status quo established in the treaty of the 15th of March, 1825, ratified 
by the convention of the 25th of December, 1880, the scope' of which has 
been the object .of various controversies. But, even if we were only to 
consider the position of Colombia to decide tlus, we may quote the text 
of the note addressed by the office at Bogota to us here, on the J 6th of 
March, 1S91, which reads as follows:— 

"As the Republic [of Colombia] is, therefore, guided by special feelings 
of concihation, it suggests that the provisional frontier be the Doraces 
River from its flow into the Atlantic Ocean up to its sources, then the range 
of Las Cordilleras as far as the Golfito River, and then the Golfito River 
down to its flow into the Golfo Dulce." 

In the second place, the State Department expresses the opinion that 
Mr. McConnell, as alleged by him, occupied the land on which the claim 
bears, under the protection of certain laws of Colombia dealing with un- 
cultivated land. 

As regards this point, we must call respectfully yom- attention to the 
fact that, whatever may have been the laws of Colombia relating to un- 
appropriated lands, the zone of land not possessed by that Republic was 
under general principles of law and pm-suant to a positive agreement of 
both govenmients clearly expressed in the treaties and communications 
referred to, excluded from the jiuisdiction of that RepubHc. It is certain 
that Mr. McConnell has planted banana plants on a tract of land, and 
that he has made there other important improvements; but it is also 
certam that, as has been pointed out to yom- office by my predecessor in 
his note of the 3rd of March last, such acts were performed clandestinely 
and illegaUy, being therefore subject to the limitations usual m such a 
case, and to proper legal sanction. 

But, inasmuch as the improvements made by Mr. McConnell or any other 
person on some land may give him possible rights of a civil character, it is 
admissible that complainant would, perhaps, have a right to claim proper 



174 

indeimiily from Mm who, becoming the owner of said land, may avail 
himself of his efforts, of his capital or of what they represent, — in no 
manner, however, would they serve him as a basis for any claim not in ac- 
cordance with the laws of this coantry. At this moment the land in ques- 
tion has by virtue of a denouncement become the property of a private 
person ; id est, a company incorporated in compliance with the laws of the 
United States, composed essentially of American citizens and possessing 
legal pei'sonality in Costa Rica. The acquisition has been effected in a 
legal manner, in conformity with our institutions and under the protec- 
tion thereof. With this new owner, in my judgment, Mr. McConnell 
should seek to settle his rights, if any he have, before the courts. Inci- 
dentally, I assure you that the courts of Costa Rica have at all times 
rendered justice in a perfectly satisfactory manner, and accordingly none 
of their decisions has ever failed to fulfil the responsibiUty of tlie 
country in the eyes of foreign nations. 



In the third place, the following suggestion occm-s in yom' com- 
munication: Pending the treaty of the 7th of March, 1905, concluded 
between Costa Rica and Panama, which defines the boundary line between 
these two Republics, when that line be materially fixed, it will include the 
concession of McConnell within the jurisdiction of Panama. 

Thence your government derives that, until the ratification of the March 
treaty, Costa Rica only exercises the right of police power and other 
attributes of sovereignty de facto within the territory in question, and it 
deems as undeniable that the sovereignty de jure has been vested in Colom- 
bia and now in Panama. 

Concerning this point I must state what has been the judgment of 
Costa Rica dming the whole period elapsed since the boundary question 
started, so that you can see most plainly therefrom the sincerity and 
uprightness of its proceedings in the present case and the inflexible logic 
and consistency which inspire its conduct in the present matter. 

My govermnent is of the opinion that the difference between sovereignty 
de jure and sovereignty de facto is not involved in the present instance, and 
cannot be rehed upon to support the proposition which your important 
communication maintains. It thinks that such a difference exists, but 
that the same is not based upon the diversity of the attributes which 
make vip one or the other, but on their origin, their cause, the title by 
virtue of which they are exercised. Both kmds of sovereignty give the right 



175 

to exercise the same and identical powers for the performance of the 
acts which sovereignty in general comprises. They only differ in that 
07W is made effective by an incontestable right, with midoubted title, 
while the other is the result of a fact which is accomplished by sufficient ele- 
ments to make itself respected by virtue of an actual occupation, and 
capable in itself of answering before the nations for the acts it consum- 
mates. The conqueror who pursuant to his own ambition makes himself 
the master of a country, and subjects it to his authority, governing it 
according to its necessities and tendencies, and even the rebel, the 
successful rebel, who succeeds in uniting sufficient elements to cause his 
government to be respected and to maintain order, exercises without 
doubt a sovereignty de facto, but, as far as the natm-e and scope of its 
powers are concerned, it differs in nothing from the sovereignty de jure; 
but Costa Rica and Panama who exercise in the zone under dispute a sov- 
ereignty animo domini, by virtue of a legitimate title such as is the Arbi- 
tration Agreement, cannot be said to possess the simple sovereignty de 
facto, and, even if this be so, we have seen that in its character and scope 
it is not less efficient than that de jure. 

Our right, therefore, to govern and dispose as sovereigns of the land 
that we are possessors of, as long as the boundary question is in abeyance, 
is, therefore, a point which is not doubted either by Colombia formerly 
or by Panama at the present moment. And the complete sovereignty of 
both countries over that which each of them is occupying now up to the 
time of the final demarcation comprises without limit — both govern- 
ments have understood it thus — all the attributes making up sovereignty. 

The titles, by virtue of which both governments govern their possession 
of those regions are the Treaty and the Convention (Agreement) to which 
I referred before (ISth of March, 1825, and 25th of December, 1880). In 
the former treaty it is specified that both countries pledge themselves 
formally to respect their boundaries as they are at the present time, reserv- 
ing for themselves to effect amicably, by means of a special convention, 
the demarcation of the dividing lines for both, and the convention adds 
that, until the question of bomidaries and the designation of the fron- 
tiers sliall be settled, the status quo agreed will be preserved. What was 
then implicitly agreed at that time — and what was that which has been 
accepted thereafter? Sunply that both Republics should manage and 
govern as their property that which they were and are possessing, with- 
out either one of them ever having claimed that they were to have only 
the usufruct of civil right during the period of uncertainty. 



176 

From what lias been expounded, it clearly follows that Colombia 
formerly and Panama since then have understood and understand, with 
Costa Rica, that each of them is owner in absolutum of that which they 
possess, and that to such an extent that their passing disputes merely 
touched on the question as to whether this place or that one was or was 
not occupied by one or the other nation. 

On the other hand, the undersigned is of the opinion that the principles 
which define and regulate private property are not at all applicable to the 
national sovereignty, if one desire to deduce therefrom that he who is not 
a definite sovereign cannot alienate! The property from the point of 
view of International Public Right, or, in other words, the eminent domain 
of the sovereign, consists, as you are well aware, in the faculty of keeping 
at all times subject to the authority of the laws a portion of a land, with 
ample and complete power to decree expropriations and to convey, by 
sale or in virtue of any other title, the estates comprised within the public 
domain, the fm'ther power to impose taxes, and, in short, to execute 
all and any of the acts which sovereignty comprises. Such a property 
right (the eminent domain) is not to be transferred. No act of Costa 
Rica which would put any part of the land under dispute outside of 
the reach of the laws of Panama, when this Republic, by virtue of the 
decision of Loubet or of the pending treaties, should incorporate in its 
territory all or a part of that which Costa Rica po.ssesses at the present 
moment, would, for the reasons indicated by the State Department, be 
regular or valid; but adjudications of land which to-day is governed by 
our laws and to-morrow may, without any trouble, be governed by the 
laws of Panama, constitute acts which, while they affect in matters civil the 
right of property, do not affect in International right, where the right, 
which is sovereignty itself, possesses a significance of a broader, more abso- 
lute and more important character, and it is not possible that such acts be 
denied to him who possesses, governs, and administers a part of a land. 

The aUenation of land to private parties which in Civil Law constitutes 
a transfer of private title is in International Law, where the ownershij) 
(dominium) as stated possesses another scope, simply an act of adminis- 
tration and usufruct; and I assume that it is in this sense that the State 
Department at Washington considers Costa Rica as an usufructuary of 
the land under controversy with Panama. The only method there can 
be of enjoying the usufruct of this territory is that of allowing the land , 
by sale or donation or some other means to come within the reach of 
private activity, and of demanding taxes, and of enforcing obedience to the 



177 

laws, all these being acts which maintain sine lesione the eminent domain, 
the right of enforcing at any time and in any form the authority of the 
legitimate owner. If the substance is saved, as the Romanists say, the 
actus is one of pm-e usufruct. If the question were that of ceding to a 
foreign coimtry a part of the territory which to-morrow can belong to Pan- 
ama or Costa Rica, if such part were recognized as or declared an inde- 
pendent State, then, indeed, the sovereignty would be infringed, then there 
would have been committed an invasion of the eminent domain of that 
Republic, and the act wodd be irregular and void. As long as that is not 
done, the act remains regular and valid. 

These considerations I beg you to transmit to the Honorable Secretary 
of State at Washington, and the same induce me to confirm the com- 
munications made by my predecessor. I confidently hope that therewith, 
and under the protection of the just spirit of the Government of the United 
States, I shall succeed in convincing the State Department of the recti- 
tude and the spirit of equity that have guided my government in the present 
matter. 

I profit by the opportunity to reiterate to yourself the assurances of 
my great esteem, with which I remain yom- obedient servant, 

Luis Anderson. 



178 



MEMORANDUM on behalf of the Northern Railway Co. upon the Memo- 
rial of Herbert L. McConnell, filed on behalf of himself and other per- 
sons composing the American Banana Co. on the 22nd December, 
1904, and the Memorial of the American Banana Co. dated on the 
28th July, 1905, and the Brief fded in suj^port of the last-mentioned 
Memorial. 

The Northern Railway Co. is a corporation formed by citizens of the 
United States under the laws of New Jersey, and is entitled by transfer 
ro certain rights which were acquired by Astua Aguilar under the laws 
of Costa Rica by proceedings commenced on the 1st March, 1900, in the 
lands claimed by the said Herbert L. McConnell or the American Banana 
Co. and lying north of the Sixaola River. 

In the instructions contained in the telegram of the State Department 
of the 2Sth January, 1906, to the American Legation at San Jose, Costa 
Rica, it is intimated that, while the power of Costa Rica and Panama 
to make a provisional agreement respecting the administration of the 
disputed territory pending the definite settlement of its ownership is not 
controverted, the Department does not concede the power of the provi- 
sional administrator to execute judgments in the capacity of sovereign 
until the sovereignty of the territory is adjudicated and the courts of 
the soA'^ereign have passed upon the matters involved, or to prejudice the 
ultimate rights of American citizens therein by adverse action in advance 
of such definite adjudication. 

The language of this telegram has created an apprehension in Costa 
Rica that this government will not permit the authorities in Costa Rica 
to exercise the ordinary functions of government in any part of the dis- 
puted territory, although the Costa Rica government may have been in 
actual possession and control of it for many years, and is the de facto 
sovereign. The consequence is that the citizens of this country who 
constitute the Northern Railway Co. are very much embarrassed in as- 
serting their title to their lands in the courts of Costa Rica against Her- 
bert Ij. McConnell and the American Banana Co. who have intruded 
into the same without any right. It is submitted that it could not have 
been the intention of the Department to intimate that the government 
of the territory in dispute between Costa Rica and Panama and the rights 



l79 ' 

and titles of all persons in respect of the land comprised in it ought to 
be suspended until the dispute between the two countries should be finally 
adjusted. According! 5^, it is suggested on behalf of the Northern Rail- 
way Co. that the instructions contained in the telegram should be so 
modified as to express that the government of this country does not 
question the right or duty of the government of each of those countries 
to administer the law and to enforce in its courts the rights of all per- 
sons in such parts of the disputed territory as are de facto in the posses- 
sion and control of such government, until the dispute shall be finally 
adjusted and the different parts of the disputed territory put into the 
possession and control of the countries to which they belong respectively 
according to the terms of the final adjustment. 

The principles applicable to cases where the government of one coun- 
try is actually in possession and control of territory that rightfully belongs 
to another country do not seem to admit of question. 

When the British forces were in occupation of Castine, Me., in 1814-15, 
the sovereignty of the United States was regarded as suspended, and 
the inhabitants were bound only by such laws as the British gov- 
ernment chose to recognize and impose. Accordingly, goods imported 
into that place during the occupation were not subject, even after the 
occupation ceased, to the duties imposed by the laws of the United States. 
U. S. V. Rice, 4 Wheat. 246 

The extent to which the authority of a de facto government is recog- 
nized is shown by the effect given to it in the case of the Confederate 
States in Thorington v. Smith, 8 Wall. 9-12, on the ground that it was 
the actual govermnent of the country for the time, though not the lawful 
one. 

In Baldy v. Hunter, 171 U. S. 400, 401, the principles were again ex- 
amined; and it was broadly laid down, upon the same ground, that the 
protection of property in those states, the enforcement of contracts, the 
transfer and descent of property, and similar subjects were under control 
of the local governments and that the judicial and legislative acts in 
the several states ought to be respected. 

In Groover v. Coffee, 19 Florida, 61, 80, a grant by the government of 
Georgia of land included in the area over which the authority of that 
state was actually exercised, was held to be valid and effectual, although, 
when the true boundary was ascertained and adjusted, the land was found 
to be in Florida. And in Rhode Island v. Massachusetts, 12 Pet. at p. 
749, the Supreme Court laid down the principle, "That grants by a gov- 



180 

ernment de facto of parts of a disputed territory in its possession are valid 
against the state whicli had the right." 

The doctrine announced in the cases of Groover v. Coffee and Rhode 
Island V. Massachiiselts was modified and explained by drawing a dis- 
tinction bet\veen cases where territory has been ceded or conquered and 
cases of disputed boundaries. The court explained the distinction in 
the following language {Coffee v. Groover, 123 U. S. pp. 9, 10) : — 

"It is no doubt the received doctrine, that in cases of ceded or con- 
quered territory, the rights of private property in lands are respected. 
Grants made by the former government, being rightful when made, are 
not usually disturbed. Allegiance is transferred from one government 
to the other mthout any subversion of property. The doctrine has been 
laid down very broadly on several occasions by this court (p. 9). . . . 

"But whilst this is the acknowledged rule in cases of ceded, and even 
conquered territory, with regard to titles acquired from a former sov- 
ereign who had undoubted right to create them, it does not apply (as 
we shall see) to cases of disputed boundary, in relation to titles created 
by a sovereign in possession, but not rightfully so. In the latter case, 
when the true boundary is ascertained, or adjusted by agreement, grants 
made by either sovereign beyond the limits of his rightful territory, whether 
he had possession, or not (unless confirmed by proper stipulations), fail 
for want of title in the grantor. This is the general rule. Circumstances 
may possibly exist which would make valid the grants of a government 
de facto; as for example, where they contravene no other rights" (p. 10). 

In the present instance we cannot at this time state whether the ter- 
ritory in dispute is or is not to be regarded as ceded territory. But it 
is not necessary to determine that point, since there exist special circum- 
stances, evidenced by the terms of treaties, and the official declarations, 
whereby the principles explained with regard to ceded territory are made 
applicable. 

The arbitration treaty of 1880 \\'as amended in 1886, for the express 
purpose, with others, of protecting titles of third parties. This amend- 
ment was made at the instance of Secretary Bayard in his despatch of 
14th November, 1885, wherein he insisted upon the establishment of two 
principles, one being that "whatever rights the United States or other 
citizens may possess on either side of the boundary which may be estab- 
lished, shall not be affected by the award but shall pass with the soil and 
be respected by the new comer as though originating under his grant." 
The scope and effect of the amendment are shown by the following docu- 
ments : — 



1'81 

In the communication from Secretary Bayard to the representatives 
of Costa Rica and Colombia under date of 26th ilaj', 1886 (For. Rel., 
1893, p. 280), he states as follows:— 

"The tliii-d article of that supplementary convention reads as follows: — 

"'Article III. The judgment of arbitration is to be confined to the 
disputed territory within the extreme limits above described and can- 
not in any sense whatever affect the rights which a third party not taking 
part in the arbitration may allege to the ownership (propiedad) of the 
territory comprised within the limits described.' 

"The Government of the United States accepts this formal declara- 
tion as a sufficient and concurrent response on the part of Colombia and 
Costa Rica, to the points presented in my identical note of November 
14, 1885, understanding that the term ' o-miersliip ' (propiedad) is em- 
ployed in no restrictive sense, but includes all possessory- or usufructory 
rights and all easements and pri^^leges wliich the United States or their 
citizens may possess in the cUsputed territorj-, not only as respects the 
relation of the U. S. toward each or either of the contracting parties to 
the Ai'bitration, but also -SNith regard to the relationsMp of the United 
States or their citizens towai'd any third Government not actually a party 
to the submission. 

"This declaration on the part of the U. S. is proper, in view of the fact, 
aimounced in yom- note to me of Nov. 10, 1885, and further declared 
and defined in Article II. of the Supplementary Articles of Jan. 20, 1886, 
that the region in dispute not only embraces territorj' to which the con- 
cessions of Colombia and Costa Rica and the mutual guarantees of the 
United States -nith Colombia might be found applicable, but also includes 
territory coming under the pui"view of the existing arrangements of Nica- 
ragua with the United States and vdih citizens of the United States." 

In confirmation thereof Minister Rengifo of Colombia, by letter dated 
22nd February, 1894 (Foreign Relations, 1894, p. 185), stated that "I 
win not close this note \sithout declaring, in wtue of express authoriza- 
tion, that, if the decision of the arbitrator should adjudge to my Gov- 
ernment control over the territories which it thinks belong to it, it would 
recognize the rights of private parties therein, and the transfers of actual 
ownersMp made by Costa Rica. Citizens of the United States or any 
other foreigners that have" obtained concessions of unimproved lands, 
or who, for any other just cause, are the owners of lands, shall be main- 
tained in possession thereof, since everj' vahd title is to be respected." 

Accordingly, it is clear that, even if the states of Panama and Colom- 



182 

bia should adopt as a general international principle the doctrine laid 
down by the United States Supreme Court in the case of Coffee v. Groover, 
123 U. S. 1, governing disputed boundaries, the terms of the treaty and 
the official assurances of the powers to the United States have clearly 
excepted the instance under consideration from the operation thereof. 

As regards the territory in dispute, the government of each country 
has for many years been in possession and control of lands that were 
claimed by the government of the other. It is conceded in Herbert L. 
McConnell's Memorial and in the brief that, as far back as 18S0, it was 
agreed between the two governments to maintain the status quo until the 
tme boundary should be finally ascertained, and that the hne of the Six- 
aola River was established as the boundary to which the occupation and 
temporaiy jurisdiction of Costa Rica extended. That status quo has been 
maintained ever since and still subsists. It was distinctly stated in 
the letter of Mr. Suarez of the 12th January, 1894, on behalf of the Co- 
lombian government (For. Rel., 1894, p. 184), that the river Sixaola 
was admitted by both governments to be the border hne of the then pos- 
session of both countries and Mr. Rengifo's letter of the 22nd February, 
1894, on behalf of the same government, recognized the same fact. The 
status quo is also referred to in the letter of Mr. Jimenez on behalf of Costa 
Rica of the 13th February, 1894, and that of Mr. Suarez on behalf of 
Colombia of the 18th May, 1894 (For. Rel., p. 190, 191).* 

The Ai-bitration Treaty of 1880 (amended 1886) having failed, a further 
treaty was made between the two states in 1896 by wliich the question 
of the boundary was referred to the arbitration of the President of the 
French Repubhc, who afterwards made Ms award at Rambouillet on the 
11th September, 1900. No change in possession or control of any part 
of the disputed territory has yet taken place in pursuance of tliis award, 
and the status quo remains exactly as it was before the award. In fact 
the award is so expressed that it is impossible to ascertain from it where 
the hne described in it ought to be laid down upon the ground, and ne- 
gotiations have been going on between the two countries ever since for 
the purpose of determining the hne. In the meanwhile the status quo 
has been continued, and the administration of the territory north of the 
Sixaola River has in fact been maintained by Costa Rica. Until the 
possession and control of this territory has been deUvered up to Panama, 
the actual control of Costa Rica is hkely to continue. 

In the Memorial of Herbert L. McConnell of the 22nd December, 1904, 

* Extracts from these letters are found on pages . 



an attempt is made to represent the present negotiations as relating to 
an exchange of territoiy rather than to the fixing of the boundary hne. 
And in the brief, wliile it is not disputed that the two countries can set 
aside an award, yet it is contended that they cannot disturb vested rights. 
Whatever may be the nature of the present negotiations, the fact is that 
there has never been any change of possession or control in pursuance of 
the award, and imtU the change takes place the de facto sovereignty 
and jurisdiction remain as before. The line has never been actually 
laid down upon the ground, and cannot be so laid down without further 
arrangement between the two countries. In some places the position 
of the hne might be indicated, and the two countries are undoubtedly 
arranging to vary its position in some places where its position admits 
of no doubt, in order to compromise their differences in places where it 
is impossible to follow the langxiage of the award. But however the 
arrangement may be described or characterized, its purpose is to settle 
the position of the boundary, which will be determined for the first time 
when the arrangement is finally concluded. If the terms of the award 
had been perfectly clear and easy of apphcation, it could not have been 
said that the de facto government of the territory in the possession and 
control of Costa Rica was transferred ipso facto at the moment when the 
President's award was made or conamunicated to the two countries. It 
was in any event necessary that something should be done to carry the 
award into effect before there would be any change in the actual control. 
As to the vested rights spoken of in the brief, it may be admitted that they 
cannot be disturbed, but no vested rights could be acquired except under 
the authority of the de facto government. 

It appears on the face of the telegTam of the 2Sth January, 1906, that 
the question of the true boundary is still unsettled. Nobody disputes 
that the de facto possession and control of the territory north of the Sixaola 
River is still maintained by the government of Costa Rica. If it were 
not so, there would be no color for the apphcations of McConnell and the 
American Banana Co. to this government. Their apphcation in such 
a case would properly be made to the government and the com'ts of Pan- 
ama to vindicate the rights they assert. Their reasons for not doing so 
are that the government of Panama has never pretended to assume con- 
trol in tins part of the country and the process of its courts does not 
run there. Tliis shows that the de facto government is that of Costa Rica. 

It may be observed that the original despatch of the 8th February, 
1905 (p. 70), wliich was sent on account of the Memorial of Herbert 



184 

L. McConnell, related chiefly to the complaint of losses on account of 
goods sunk in a lighter, and it decUned to pass on the other questions 
and made no suggestions regarding the powers or rights of the de fado 
government. 

As regards the suit against Herbert L. McConnell for an injunction to 
restrain liim from %iolating liis agreement with A. W. Preston and others, 
wliich is referred to in the Memorial of the iVmerican Banana Co. (p. 178), 
it should be mentioned that an injunction as prayed was awarded by an 
order of the U. S. Circuit Court for the Southern District of Alabama 
made on the 31st August, 1905, and that, upon the appeal of the said 
Herbert L. McConnell, the order was affii-med by the U. S. Court of 
Appeals for the Fifth Circuit on the 30th October, 1905. 

STOREY, THORNDIKE, PALMER & THAYER. 



f85 



CHAPTER 7. 
Containing the transfers of the Astiia Denouncements, and the legal pro= 
ceedings in Costa Rica through which the said denouncements were 
adjudicated and effected, and showing the participation of McConnell 
as a party to such proceedings. 

ORIGINAL TRANSFER OF THE ASTUA DENOUNCEMENTS. 

Protocol No. 7, Translation of deed covering the cessions of rights in De- 
nouncements 425 and 427 of March 1st, 1900, of Eleven Thousand 
Hectareas of land located on the Sixaola and Estrella Rivers. 

Consideration, $5,000.00. 

Before me, Manuel Francisco Jimenez Ortiz, Notary Public of this 
city, appeared Messrs. Luis Anderson Morua, bachelor, lawyer, and Mar- 
iano Guardia Carazo, married, book-keeper, both of age and resident 
of this place, the first for himself and the second as the general repi-esen- 
tative of the United Fruit Company of Jersey City, and stated: — That 
attorney Jose Astua Aguilar, for himself and in the name of his children 
(minors), Jose Antonio, Graciela, Dora, Mercedes and Margarita Astua 
Lizano, his wife, Carolina Lizano UUoa, and Rodolfo Rojas Montero, 
for himself and in the name of his daughters (minors) Lola, Maria, Adelia 
and Graciela Rojas Gonzalez, presented theniselves under date of March 
1st, 1900, before the judge authorized in the premises (Contencioso-Ad- 
ministrativo) denouncing for each one of the twelve persons iadicated 
500 Hectares of the Government land situated in the jurisdiction of the 
district of Limon and bounded as follows: North by the Maritime res- 
ervation or mile of the Atlantic, which commences at Gandoca Creek, 
continuing toward the mouth of the Sixaola River and extending in the 
direction toward Cahuita; south by the left bank of the said Sixaola 
river; east by the above-mentioned Maritime reservation, starting from 
the mouth of the Sixaola; West, in part by the same line of the Sixaola 
and the balance by Government lands, as is shown in the respective in- 
strument on file with the Judge above mentioned and which carries the 
number 2904. 

That the same persons as hereinbefore expressed presented themselves 
also before the same authority on the fu-st day of March, 1900, denounc- 



186 

ing Five Hundi-ed Hectareas for each one of the twelve persons indicated, 
located in other Government land, situated in the jurisdiction of Limon, 
and bounded: — on the North in part by the Maritime Reservation or 
mile, which extends along the shore from Cahuita point to the mouth of 
the Estrella River, and in part by the same river; on the South by the 
Sixaola and the lands of San Bernardo Colony; on the East by lands de- 
nounced by the same parties herein mentioned; on the West by the Es- 
trella River and Government lands as is shown in the respective instru- 
ment on file in the office of the Judge above mentioned and carried under 
No. 2905 

Mr. Anderson continues stating that all of tlie riglits which the parties 
mentioned herein have in the two denouncements specified have been 
ceded to him with the exception of those which belong to Margarita 
Astua Lizano (minor) ; and that, as a consequence, he is to-day denouncer 
of Eleven Thousand (11,000) Hectareas of land, the rights in which have 
been ceded to him; and that, as cessionaire, he cedes in turn aU of his rights, 
actions and privileges which he has or may have in the before-mentioned 
denouncements, as they now stand, in accordance with the instruments 
mentioned, to the United Fruit Company of Jersey City in the sum of 
Five Thousand (5,000) Colones which in this act and in my presence 
he receives in current money. 

I, the "Notary, certifj' that I am acquainted with the parties appearing 
before me, and that they enjoy full civil capacity; that I liave seen the 
relative documents from which the deed herein set forth has been taken. 
I vouch for the personality of Mr. Guardia by virtue of the power of at- 
torney executed before Alberto Pacheco Cabezas, Notary Public, in this 
city, at twelve o'clock noon of the thuty-first day of August of the past 
year. I adliere and cancel stamps in accordance with the law. I exe- 
cute a first copy of this contract and deliver same to the Executor, Mr. 
Guardia. I collect no fees. 

This writing having been read to the parties present before witnesses, 
with whom I am acquainted and know that they can act as such, Messrs. 
Ricardo Pacheco, lawyer, married, and Jorge Fonseca, bachelor, both 
of age, and residents of this place, they all stated that they approved of it, 
and all signed with me in the city of San Jose at 12 o'clock noon of the 
9th day of August, 1904. 

(Signed) Manuel F. Jimenez. 
Maro. Guardia. Luis Anderson. 
Ricardo Pacheco. J. Jorge Fonseca. 



m 



CERTIFICATE showing ACQUISITION OF ASTUA DENOUNCE- 
MENTS by John M. Keith and others. 

4th February, 1905. 

Alejandro Jiminez Carrillo,] 

Secretary of the Court of Contencioso Administrativo of the RepubUc 
of Costa Rica, 
Certifies: That in this Coui't there are in process of adjustment the 
documents relating to the denouncement of public lands denounced by 
Don Jose Astua Aguilar, Donna Carohna Lizano Ulloa de Astua, and Don 
Rudolfo Rojas Montero for themselves, and the first and last also in the 
name of their respective minor children, Jose Antonio, Graciela, Dora, 
Mercedes and Margarita Astua Lizano, legitimate children of the first 
names; and Lola, Maria, Adilia and Graciela Rojas Gonzalez, legitimate 
children of the third mentioned. Said denouncements were both pre- 
sented to this Court the 1st of March, 1900. The first denouncement 
bears Number 2904, and the land therein denounced is situated in Tala- 
manca, jurisdiction of the Territory of Lmion within the following boun- 
daries: North, the maritime mile fronting the Atlantic, commencing at 
Gondoca Creek toward the mouth of the Sixola River and extending in 
the direction of Cahuita; South, the left bank of said Sixola River; East, 
said maritune mile starting from the mouth of the Sixola River; West, 
in parts the same fine of the Sixola, and for the remaining distance pub- 
lic lands. There have been denounced in this region 500 hectares for 
each one of the three persons: Astua Aguilar, Lizano Ulloa de Astua and 
Rojas Montero, and 500 hectares of the same territory for each one of , 
the nine minor children mentioned. The other denouncement bears 
Number 2905. The land is situated in jurisdiction of the Territory of 
Limon within the following boundaries: North, in part the maritime 
mile which extends from the shore of Cahuita Point to the mouth of 
Estrella River, and in part this same river; South, the Sixola River 
and the land of the Colony of San Bernardo; East, the lands denoimced 
by the same persons already mentioned; and West, the Estrella River 
and public lands. It comprises the same extent of land as the previous 
one, say 500 hectares for each one of the persons, Astua Aguilar, Lizano 
Ulloa de Astua, and Rojas Montero, and 500 hectares for each one of 
the nine minor children. The rights in the first mentioned denounce- 
ment were ceded and to-day belong as follows: to John Meiggs Keith 



188 

and Faulkner, the rights of Rodolfo Rojas Montero; to the minor chil- 
dren Rosa, Emily, John and Hemy Keith Alvarado respectively the 
rights corresponding to the minor children Lola, Maria, Adilia, and Gra- 
ciela Rojas Gonzalez; to Minor Cooper Keith and Meiggs the rights which 
personally belonged to Astua Aguilar; to Mariano Guardia Carazo the 
rights which corresponded to Carolina de Astua; to Edgar J. Hitchcock, 
Manuel Montejo Hebert, Don David Andrew Johnston and Stevenson, 
and FeUx Echeverria Zeledon the rights which belonged respectively to 
the minor children Jose Antonio, Graciela, Dora and Mercedes Astua 
Lizano. The rights in the second denouncement were ceded to the same 
persons already stated. There belongs to each one of them, there- 
fore, 500 hectares in each denouncement. The documents correspond- 
ing to each denouncement are following the necessary course in accord- 
ance with oiu' law, and are awaiting the respective surveys and plans to 
be presented by the surveyor appointed for the pm'pose by this Com't. 

The present Certificate is issued at the request of John Meiggs Keith 
in the City of San Jos^, RepubUc of Costa Rica, 4th day of the month of 
February, 1905. 

(Signed) Alejandro Jiminez Carrillo. 
(Seal of the Court.) 

Alejandro Castro Carrillo, Judge of Contencioso Administrativo of 

the Repubhc of Costa Rica, 

Certifies: that the preceding signature of the Secretary of this Court 

which reads "Alejandro Jiminez Carrillo" is authentic, and has been given 

by said functionary in the exercise of his functions, 3d of February, 1905. 

' (Signed) A. Castro Carrillo - 

(Seal of the Court.) 

Alejandro Alvarado, President of the Supreme Court of Justice of the 
Republic of Costa Rica, 
Declares that the preceding signatm-e of the Judge of Contencioso 
Administrativo of the Repubhc, which reads: "A. Castro Carrillo" is 
authentic. 

Palace of Justice, San Jose, 4th of Feb., 1905. 

(Signed) A. Alvarado. 
(Seai. of the Supreme Court.) 
Before me, 

(Signed) Alfonso Jimenez. 



^89 

Carlos Lara, Sub-Secretary of State in the Department of Justice and 
Foreign Relations of the Republic of Costa Rica, 
Declares the authenticity of the preceding signatm-e of the President 
of the Supreme Com-t of Justice, which reads: "A. Alvarado." 

San Jose, 4th of February, 1905. 

(Signed) Carlos Lara. 
(Seal of Deft, of Justice.) 
(Seal of Deft, of Foreign Relations.) 



Consulate of the United States, 

San Jose, Republic Costa Rica. 

I certify that the above is the true and genuine signature of Don Carlos 
Lara, Sub-Secretary of State of the Republic of Costa Rica in the De- 
partments of Justice and Foreign Relations. 

Given under my hand and the Seal of this Consulate the 4th of Feb- 
ruary, 1905. 

(Signed) John C. Caldwell, 

Consul of the United States, 
(Consular Seal.) San Jose, Costa Rica. 



190 



McCONNELL'S POWER OF ATTORNEY by virtue of which he ap- 
peared and toolc part in the legal proceedings relative to the Astua 
Denouncements through Ricardo Jimenez, his attorney. 

Before me Carlos Brenes Ortiz, a notary public of this city, there ap- 
peared Herbert Lee McConnell Scott, of age, unmarried, a contractor, 
a citizen of the United States of America, an inhabitant of Mobile, Ala- 
bama, and temporarily in this city and deposed: 

That he confers a judicial power of attorney to Mr. Ricardo Jimenez 
Oreamuno, of age, unmarried, a lawyer and an inliabitant of this city, 
\\Tith the faculties provided for in article one thousand two hundred and 
eighty-nine of the Civil Code, and the further faculty of appointing sub- 
stitutes for the said power either wholly or in part, revoking the substi- 
tutions and making other new ones. I certify that I know the party ap- 
pearing here, and that he is in full possession of his civic rights. I issue 
a first certified copy which I deliver to the said person and collect eight 
colones by way of fee. Since the executing party does not understand 
the Spanish language, there acts as interpreter Mr. Luis Anderson Moiiia, 
of age, unmarried, a lawyer, and an inliabitant of this city who translated 
this document into English, a language which the party appearing speaks 
and which I understand: after the preceding had been read to the execut- 
ing party in presence of the instrumental witnesses — and 1 herewith cer- 
tify that I know them as well as the interpreter to possess the necessary 
capacity for this act — the fomier being Manuel Francisco Jimenez, a law- 
yer, and Pedro Alvarado, a law student, both of age, unmarried, and in- 
habitants of this city, the executing party declares that he approved 
thereof, and all sign before me and with me in the city of San Jose, in the 
office of Mr. Anderson at two o'clock in the afternoon, on the twentieth 
of October nineteen hundred and four: Carlos Brenes — H. L. McConnell — 
Luis Anderson — P. Alvarado — Manuel F. Jimenez. The above is a copy 
of document number twenty-five, entered on page thirty, back, of vol- 
ume 8 of my records. Upon comparing same with its original before the 
executing party and witnesses, it was shown to be conformable. This 
first certified copy is issued upon request of the executing party, adding 



191 

one colon revenue stamp, in the city of San Jose, at the same time when 
the original is drawn up. 

Carlos Brenes. 

Lxjis Anderson. 

H. L. McCoNNELL. 

P. Alvarado. 
Manuel F. Jimenez. 

Recorded in the Record of Persons, volume 15, page one hundred and 
eighty-one, entry 18866. San Jose, November 16, 1904. Jose Maria 
Acosta. There is a seal, viz.: Pubhc Register P. H. P. Costa Rica. 



Provision of the civil code of Costa Rica, referred to in the foregoing 
power of attorney. 

[Translation.] 

Article 1289. By virtue of the Judicial power for all transactions 
the mandatary can appear as complainant or defendant in the name 
of his mandator, in any matter concerning the latter, carry on the suit 
or suits in their different stages, use all ordinary and extraordinary re- 
courses, compromise, settle by arbitration proceedings, demand hearings 
and reply in such hearings, acknowledge documents, receive moneys 
and give the corresponding receipts therefor, execute and cancel such 
documents as may be required in connection with the matter or matters 
in hand, waive any proceedings, challenge the functionaries of the court 
and complain of them, or accuse them because of the injustice of the deci- 
sions rendered, and do anything that the mandator would do if he were 
present in person, to carry the matters to their conclusion. 



192 



DECISION OF THE COURT OF CONTENCIOSO ADMINISTRA- 
TIVO REJECTING McCONNELL'S OBJECTIONS. 

Court of Contencioso Administrativo of the Republic. San Jose at three- 
quarters after nine a.m. on the fifteenth of March one thousand nine 
hundred and five. 

Whereas Mr. Herbert Lee McConnell has opposed the present denounce- 
ment alleging that the Sixola River is navigable and that the denounce- 
ment of the fluvial mile is irrelevant and that this denouncement has 
lapsed ; 

Whereas the Prosecuting Attorney and the denouncers were notified 
above opposition, and they all have appeared with the exception of Sen or 
Montejo, who has been accused of contempt, and have denied the right 
of the opponent to such opposition; 

Whereas the grounds upon which Mr. McConnell bases his opposi- 
tion to wit: that the land in question is not denounceable and that this 
denouncement has lapsed, do not constitute any real or personal right 
belonging to the plaintiff upon Avhich the claim could be based as requirctl 
by Section 1st of the Code of Civil Procedure governing admission of 
claims; 

Whereas only the Treasury by means of his legal representative could 
present claims as presented by the plaintiff as it is the only party holding 
rights upon which to base such claims; 

Whereas the Prosecuting Attorney instead of supporting the claim 
of Mr. McConnell requests that the same be rejected as he has no right' 
to present the same and that the denouncement be continued; 

Whereas from all of the above it appears that Mr. McConnell has no 
right to make the claim the same is denied: 

Now THEREFORE in accordauce with the law above mentioned and 
mth Section 516 of the Fiscal Code the opposition to the present de- 
nouncement as presented by Mr. Herbert Lee McConnell is rejected. 
Surveyor Don Leonidas Carranza shall proceed to the examination of 
the plan and measures. (Sgd) A. Castro Carrillo. 



l93 

DECISION of the SUPREME COUET rejecting McConnell's objections, 
and approving the Astua draiouncements. 
13 Oct., 1905. 

First Chamber of Appeals of the Supreme Court of Justice. San Jose, 
at 3.45 PJJ. of the thirteenth of October, 1905. 

Concerning title of denouncement of an unappropriated land situated 
in Talamanca, Jurisdiction of Limon and executed before the Judge of 
contencioso administrativo in the repubhc by ilrs. Carolina Lizano, wife 
of Astua. and Others. 

Whekeas in this matter ilr. Herbert Lee MacConneU presented him- 
self and deposed that in the said denovmced tract he had considerable 
cultrrations: that article 523 of the Fiscal Code which authorizes the de- 
spoliation of the possession of the planter (will say dispossessment of 
farmer) refers only to such denouncements as are made and brought 
about according to law; that the said denouncement is illegal, both for 
the reasons alleged in his former petitions and also because all the tract 
is comprised in the flu^"ial mile of the Sisola River as was indicated in the 
survey made thereof; 

Ajvd wheeeas after hearing the parties interested as well as the State 
Attorney, the former at the hearing objected to the assertions of IVIr. 
McConneU and asked that he be condemned in the costs, damages and 
losses which he by his proceedings had cau-sed to them and as the State 
Attorney was declared in default for not ha%'ing been present at that hear 
ing; 

And whereas the court at 8. -45 of the morning of the fourteenth of 
August of the current year, basing itself upon articles 513 of the Fiscal 
Code and 192 of the Code of CIatI Proceedings decided the default of the 
hearing as ha^Tng been proven, and ordered that the parties could resort 
to making use of the rights in the ordinary way: 

Aat) whereas Messrs. Licentiate Ricardo Pacheco, E. J. Hitchcock, 
Mariano Guardia, D. A. Johnston, Felix Echeverria, Jose Astua Aguilar, 
appealed against this decision and said appeal was allowed in the writ 
retmnable before this court where the same has passed through the proper 
proceedings after submitting to it the original files; 

Aso WHEREAS at 3.30 of the afternoon of the thirtieth of September, 
the court disagreed on the matter in hand, each of the judges handing 
down an opinion of his own, viz., as follows: — 

Licentiate Luis Davila stating that (1) Article 509 of the Rscal Code 



194 

forbiils tlic disposal of the tracts comprised in a zone of one mile widtli 
along the coast of both the sea and the banks of navigable rivers. (2) 
That from the files it appears that the denounced tracts were placed by 
the surveyor who carried out the survey, as being on the left bank of 
the Sixola River, wherefore, this being a matter of public property, it 
cannot be cancelled by agreement of the parties, and that, therefore, it is 
indispensable that for the validity of the sale made of that tract the bound- 
aries of those parts that caimot be denounced, if any there be, should first 
be ascertained. (3) That the taking of such boundaries is also necessary 
in order to pass on the petition of Mr. McOonnell, since from the result it 
depends whether his claim can obtain, or not, the applicatioa of provision 
523 of the Code quoted. (4) That the practical decision as to whether or 
not a river is navigable and to what extent and the boundary-fixing of 
the fluvial mile as well as the analogous questions of determining the 
maritime mile and of the coast which involves matter of national security, 
politics as well as fiscal questions, comes mthin the province of the Ex- 
ecutive Power, duly in charge of the administration of the country — 
Therefore he declares that the present denouncement should be held in 
abeyance until the Executive determine the non-denounceable part of the 
mile of the Sixola River, wherefore the decision which caused the appeal 
should be revoked. 

Licentiate Benito Serrano stating that, inasnmch as the demarcations 
of boundaries di-\dding this Republic and that of Panama has not been 
effected, and inasmuch as there exists considerable doubt, after the finding 
as arbitrator of the President of the French Repubhc on this special point, 
as to whether or not the tracts denounced and from which Mr. McConnell 
is to be dispossessed, are or are not, m toto or in parte excluded from the. 
Costa-Rican territory, the pursuit of the present denouncement should be 
suspended until the decision in the case can be rendered definitely, since 
in the contrary case it might happen that this Republic might be exposed 
to claims coming from the Republic of Panama or coming from Mr. McCon- 
nell, and it being suitable that such claims be avoided, wherefore the course 
of the present matter should be suspended, and thus the decision appealed 
against should be revoked. ; 

Judge and President Licentiate Alberto Brenes stating that the only 
point to be taken under consideration by this court should be whether 
or not the parties should be sent back to the lower court so as to discuss 
the opposition manifested by Mr. McConnell, and that since this gentleman 
did not claim any actual right to the tract, but merely his right as an 



195 

improving possessor, he is not a party entitled to oppose the continuation 
of the denouncement proceedings, since the only right he has is that of 
demanding that the improvements made by Mm should be recognized in 
compliance with provisions 523 of the Fiscal Code; he, therefore, votes 
that the decision appealed against should be reversed, and that the objec- 
tion of the said McComiell be denied, and that he be condemned in the 
costs of the appeal. 

At three o'clock of the afternoon of third of the current month of October 
a new vote was taken on the case, and since the three judges confirmed 
their votes, it was decided that the matter should come before the full 
bench in comphance mth article 73 of the Code of Civil Proceedings in order 
that assistant judges might be drafted, and thus the deadlock be broken. 

The Court ha-ving been supplemented by the assistant judges, Messrs. 
Aguilar Barquero y Zelaya, the matter was further taken under advise- 
ment, with the result that the said assistant judges and President Brenes 
agreed upon the reversing of the said judgment and declaring that 
Mr. McConnell has no right to oppose the continuation of the denounce- 
ment proceedings for the reasons mentioned later on, and that said proceed- 
ings should be continued with the limitation, however, that the fluvial mile 
should be respected, as far as the part of the Sixola River where it is navi- 
gable is concerned. 

And whereas the objection raised by Mr. Herbert Lee McConnell lacks 
all fouudations because the said gentleman is not a party entitled to appear 
under any form whatsoever in the present denouncement, since he neither 
alleges any right of o^^Tiership to the tract involved nor even the right 
which he might possess as an earlier denouncer of the same land, hmiting 
himself to alleged rights of an improving possessor and to making sundry 
allegations concerning the invaUdity of the denouncement and the non- 
denounceabihty of the tracts comprised therein; 

And whereas the fact that the opponent has made improvements on 
national property does not give him any rights to demand that his posses- 
sion be respected, as long as he has not shown that he had complied with 
the formalities indicated in section 530 of the Fiscal Code; 

And whereas as regards the lapse of the denouncement, it is to be 
remembered that the law of the first of April, 1896, referred to the denounce- 
ments of unappropriated land then pending (at that date), but not to 
those which were made subsequently, to which the present one belongs; 

And whereas, as concerns the fluvial mile of the Sixola in the extensions 
in which the same according to the law cannot be denounced, it is fit to 



196 

declare that the auction or awarding shall not comprise it if the same be 
actually included in said denouncement, either in part or entirely (decree 
of the 27th of March, 1895) : 

Now THERKFORB the decisiou appealed against shall be reversed, the ob- 
jection of the said Mr. McConnell is to be denied, the denouncement can 
be proceeded with, and the auction or awarding taking place with the 
saving of what has been specified above. 

Alberto Brenes. 

Benito Serrano. 

Luis Davila. 

F. Aguilar B. 

A. Zelaya. 

J. R. Arguello de Vars, Clerk. 

Note. — Judge Luis Davila formulated his vote in the present case as 
follows : — 

He conforms to the previous decision, but opines that 

Whereas, as the majority of the court assmnes, the decree of the first 
of April, 1896, does not apply to the present case as regards the caducity, 
inasmuch as the provision found there in this respect refers expressly to 
the titles then in course of issuing, -without that the Decree of the 29th of 
July of the same year and the later ones which have suspended the de- 
nouncements of unappropriated land reproduce the rule of the caducity 
de facto, wherefor in this point the provisions of the Fiscal Code obtain; 

And whereas Mr. McConnell in compliance mth the doctrine of article 
837 of the Civil Code and 3 of the Code of Civil Proceedings possesses the 
rights of a party to oppose himself to the disposal of the land in that part 
which is not denounceable, while being excluded from the denouncement, 
his position (status) is governed by the provisions of article 523 of the just 
now quoted code, if his cultivations were in the denounceable part, and 
since in this assumption his opposition is not founded; 

And whereas, when the law granted to the Executive Power the supreme 
right of inspection as regards the disposal of unappropriated land, it needs 
must have by implication granted him the right of determining adminis- 
tratively that which cannot be denounced in tliis case, for, if it were not 
so, one could not see how he could properly discharge his duties in this 
kind of business: 

Therefore, and in agreement with the former reasons alleged, he opines 



197 

as the majority does, but -nith the reservation that the demarcation of the 
flmial mile should be effected by the Executive Power. 

Lms Davila. 

J. R. Argitello de Yars, Clerk. 

Note. — Justice Benito Serrano accepts the previous conclusions sa\'ing 
the conclusion. 

V. Benito Serrano. 

J. R. Arguello de V^uis, Clerk. 

Entered in the- book of votes of the present year, on pages one hundred 
and twenty-six to one hundred and tliirty-four. Compared with original 
these presents were found correct, j 

San Jose at one p.m. on the twenty-fourth of October, 1905. 

J. R. Arguello de Vars, Clerk, 
Allowed: Alberto Brenes. 

DECREE of the Court of Coutencioso Administrativo authorizing and 
directing the execution of a deed of the lands covered b}- the Astua 
Denouncement to the Northern Railway Company 

(26 January, 1906). 

In the Com't of Contencioso Administrativo of the Republic at San Jose at 
one o'clock p.m. of the twentj'-sixth January, 1906, there appeared before the 
undersigned Dona Carolina Lizano UUoa de Astua, Don Jose Astua Aguilar, 
counsellor, and Don Rodolfo llontero, artisan, of full age, married, the first 
two being residents of this citj^ and the third one of the city of Heredia. 
They all appear in tlieu o^^^l right and behalf, and the second one named 
also as representative of his children Jose Antonio, Garciela, Dora, Mer- 
cedes y ilargarita, who are infants; and the thii-d one named also as rep- 
resentative of his childi'en Lola, Maria, Adilia y Garciela, who are infants. 
They all appear for the purj^ose of denoimcing five hundred hectares of 
land for each one of them and five himdred hectares for each one of the 
infants represented by them. The said lands being unappropriated lands 
situate in the Zone of Talamanca, sole district "Canton unico" of the Co- 
marca de Limon. 

It APPE-UirxG that the advertisement of such denunciation in the 
Official Gazette was ordered, and the order complied -nath and the tenn to 
hear oppositions to the gi'anting of the lands denounced having expired 



198 

without any opposition being made, the denunciation was accepted and 
the sui"vey of the lands ordered, the surveyor being appointed for that 
purpose. 

It appearing that by virtue of cessions made by the denouncers, with 
the proper judicial authority as regards the rights of the infants, of their 
rights under the denunciation in favor of Mr. John Meiggs Keith Faulkner 
and his children Rosa, Emily, John, and Hemy; Mr. Minor Cooper Keith 
y Meiggs; Don Mariano Guardia Carazo; Mr. Edgar J. Hitchcock Kinyon; 
Don Manual Montejo Heber; Mr. David Andrew Johnston y Stevenson 
and Don Felix Echeverria Zeledon. 

It appearing that the survey and plan were approved and that certain 
exclusions were made afterwards by order of the Superior Tribunal in its 
decision regarding a petition opposing the adjudication of lands and which 
matter was disposed of by the decision of the said Tribunal. 

It appearing that the operation ordered by the Superior Tribunal con- 
sisting in the exclusion of the part of the zone not subject to denunciation 
wliich had been included in the original sm"vey was made by the sm'veyor 
and duly approved the said lands appear to comprise five thousand eight 
hundred and fifty hectares and five thousand nine hundi-ed and fifteen 
square meters excepting the two per cent, for roads as provided by law 
the said lands being bound as follows: On the North by unappropriated 
lands and the marine zone, on the South by the Sixola River, on the East 
by the said Sixola River and part of zone not subject to denunciation and 
on the West by unappropriated lands. 

It appearing that at this stage of the proceedings new cessions were 
made by which Licenciado Astua Aguilar as duly authorized executor 
transfers the rights of his daughter Margarita, deceased, and the other 
parties interested Hkewise transfer aU their rights to the Northern Railway ' 
Company duly represented by its attorney Mr. M. Keith who in the name 
of said company has accepted such transfers. 

It appearing that the said Keith as such attorney requests the approval 
of such cessions, and that he be considered as the only party to this pro- 
ceeding and also that all lands mentioned in the survey be adjudicated to 
the company represented by him on account of the eleven thousand and 
odd hectares to which the said company is entitled mider the terms of deed 
executed by the MunicipaUty of the Canton Central of the Province of 
Cartago which MunicipaUty duly authorized sold to the said company the 
eleven thousand three hundred and fourteen hectares five thousand two 
hundred and fifty-three square meters to which lands the said Mimicipality 



199 

is entitled by virtue of Decree No. 53 of the 18th August 1904 and other 
orders mentioned therein. 

It appearing that the District Attorney (Promoter Fiscal) assents to 
the granting of the request of the said attorney, and has agreed with him 
to fix the price of the said adjudication for fiscal purposes in the sum of 
three "colones" per hectare, all legal requirements being thus compUed 
with; and 

Whereas the parties hereto have accepted the operation recently made 
by the sm'veyor which operation leaves out of the original survey the part 
that the same should not have included the surface shown by the report 
which should be -approved must be considered as the surface of the lands 
denounced; and 

Whereas cessions of their rights have been legally made by all parties 
interested in the lands denounced in favor of the company organized under 
the laws of the State of New Jersey one of the United States of America 
with domicile in Jersey City duly registered in this Republic under the 
name "Northern [Railway Company" the lawful attorney of which com- 
pany is Mr. John Meiggs Keith as appears from the document filed by him 
the said cessions should be approved the said company considered as the 
only party to the proceedings and the presence of Mr. Keith as attorney 
a sufficient representation of the said company; and 

Whereas it appears from the deed filed that the said company is the 
owner by virtue of purchase from the Municipahty of the Canton Central 
of the Province of Cartago of the rights of the latter to the free assignment 
of eleven thousand three hundred and fourteen hectares five thousand 
two hundred and fifty-three square meters of unappropriated lands the 
assignment should be granted as the said lands are unappropiiated; and 

Whereas the appraisement of the said lands is only for fiscal purposes 
as the assignment of the same is gratis the said appraisement should be 
accepted and decreed in accordance witli the petition: 

Now therefore the operation made by the sm'veyor recently is hereby 
approved and his report thereon is considered as a complement of the sur- 
vey. Cessions of rights acquired by the denunciation (denuncio) in favor 
of the Northern Railway Company are hkewise approved. The cessionary 
is considered as the only party in these proceedings and Mr. Juan Meiggs 
Keith Faulkner as its lawful attorney by virtue of the power filed by him 
and which shall be returned to him after the proper notation is made. The 
lands mentioned in these proceedings are hereby assigned to the said com- 
pany. The said lands comprising five thousand eight hundred and fifty 



200 

hectares and five thousand nine hundred and fifteen square meters ex- 
cepting the two per cent, for roads. The said lands being situate in Tala- 
manea, in the jui'isdiction of the Coniarca de Limon, and bounds as follows : 
On the North by the Marine Zone, and unappropriated lands; on the South 
by the Sixola River; on the East by the Sixola Ptiver and part of the Marine 
zone of same not subject to denunciation; and on the West by unappro- 
priated lands. These lands are given on accomit of a larger amount to 
which the said cessionary is entitled as successor to the Municipahty of the 
Canton Central de Cartago as appears from the deed filed, and which shall 
be returned to the said cessionary after the proper notation is made. For 
fiscal pm-poses the price of the said lands is fixed in seventeen thousand 
five hundred and fifty-one "colones" seventy-one and a half cents. It is 
hereby ordered that this decision be notified to the Accounting Department 
of the National Treasury and to the Executive with whose approval a public 
deed to be the title of the said company to the lands mentioned shall be 
executed. 

A. Castro Carrillo. 

L. ZXJMBADO. 

R. RoDOMiRO Origgi. 



PROTEST of McConnell to the Decree authorizing the deed to the North- 
ern Railway Company (22nd February, 1906). 

First: To His Honor the Judge of Contencioso Administrativo 
(Denouncement of Mrs. Carolina Lizano Ulloa et al.). 

I, Ricardo Jimenez, known in this proceeding as legal attorney of Herbert 
Lee McConnell, respectfully submit: 

Your petitioner was of the opinion that in these proceedings no new step 
had been taken, and he was of the opinion because no notification had been 
sent to hmi. With surprise he learned to-day that the matter had ad- 
vanced fm-ther, and had even come as far as the adjudication of almost all 
the land to the grantees of the denouncers. 

This adjudication was effected in contravention of the resolution of the 
Court of Appeals, which called for the exclusion from the denouncement 
of the fluvial mile of the Sixola. The acting parties in derision of this 
order of the Superior Com't, and which is worse, with the consent of the 
District Attorney, limited arbitrarily tliis fluAdal mile to the marshes of the 
mouth of the Sixola, which are of no use to them for planting bananas, so 
that according to them and according to the district attorney the Sixola 



loi 

is na'S'igable to the extent of onlj- a little more than a mile, in spite of the 
fact that any school child who knows the geography of the country, knows 
that this river is na-\-igable to the extent of many miles. 

It will be said that, if the district attorney makes up his mind to surrender 
the rights of the RepubUc in favor of Mr. Keith, it is none of Mr. McConnell's 
business, because the Comls said that he could not oppose himself to the 
denoimcement made here. The petitioner hastens to reph' to this specific 
argument. 

First: Mr. McComieU could not oppose himself to the denouncement; 
that is, not to a denouncement pennitted by the court, which does not 
comprise the fluA-ial mile, and since on tlus flu\-ial mile ilcComieU has cul- 
tivated land as he has affirmed in these files, without contradiction on the 
part of his opponents, it is clear that he becomes a legitimate part}' when 
he petitions that that which the Superior Com-t has decreed concerning the 
exclusion of the fluvial mile should be respected. 

Moreover, if it were certain that the Sixola is not na\igable beyond its 
mouth, the proceedings would stiU be imperfect if McConnell were passed 
over, inasmuch as, according to article 523 of the Fiscal Code, everj^ de- 
nouncer must pay for the unprovements made bj^ a third party in the land 
denounced, and for this piupose it is necessary that such improvements 
be appraised bj- experts before submitting the land to public auction, and 
still more so before adjudicating the land to the bidder or to the denouncer. 
Everything done, therefore, since the failiue to inform Mr. McComieU is 
null and void, as effected, without the inten-ention of a legitmiate part)^ 
Article 1102 of the Code of Ci\il Proceedings. Therefore, the undersigned 
interposes, as secondarj- point of htigation, the above matter, so as to bring 
about the declaration of said cancellation, and in order that the proceed- 
ings may take place in legal form in the presence of the parties interested, 
to fix the flu^"ial mile, which is to be excluded, and in order that if the 
plantations of Mr. McConnell are foimd to be within the land which legiti- 
mately can be denoimced they may be appraised by experts in order that 
these improvements be indemnified before any adjudication of the land 
be made. 

I again elect domicile as before for notifications. 

San Jose. Febniary 22nd, nineteen hundred and six. 

RiCABDo Jimenez. 



202 

Deed of the lands included in the Astua Denouncements to the North- 
ern Railway Company dated 14th of March, 1906. 

Matter of Carolina Lizano. 

Adjudication of unappropriated land in favor of the Northern Railway 
Company at 10 a.m. on the 14th of March, 1906. In the District of 
Limon. 

Presented at 1:10 March 14th 1906 under 4493, folio 542, tomo 80. 

/, Jose Luis Saenz Pacheco, a notary domiciled in this capital, by virtue 
of the resolve inserted at the end, protocolize herewith the following docu- 
ments: 

Sm'vey of the Republic: Pimta de Mona, jurisdiction of the District 
of Limon at twelve o'clock of the fifteenth of November nineteen hundred 
and fowc. — Eight o'clock a.m. of the seventeenth of the present month of 
November is fixed for taking the sm'vey to which this decree I'efers. 
Agustin Gutierrez, Alberto Rodriguez, Joaquin Gonzalez. Survey of the 
Republic: Punta de Mona, at eight o'clock a.m. of the seventeenth of No- 
vember nineteen hundred and four. As witnesses who are to be present 
at the survey Messrs. Enrique Peyroutet and Viriato Espinach are here- 
with appointed. Agustin Gutierrez, Alberto Rodriguez, Joaquin Gonzalez. 
In pursuance of tlie above there are present Messrs. Enrique Peyi'outet and 
Vu-iato Espinach, both of age, the former married, an engineer, domiciled 
in the city of Limon, the latter unmarried, a farmer and domiciled in the 
city of San Jose, were mformed of their having been appomted as witnesses, 
they accepted and took oath that they would carefully and faithfully ful- 
fil the duties imposed upon them. Agustin Gutierrez, Viriato Espinach: 
E. Peyroutet, Alberto Rodriguez, Joaquin Gonzalez. To the Judge of 
Contencioso Administrativo : I the undersigned surveyor appointed by you 
for carrying out the survey of the tracts to wliich this court's decree refers, 
have the honor of reporting: at eight o'clock a.m. of the seventeenth of 
November of last year, this being the day and month indicated, I repaired 
with the witnesses, chain-bearers, assistants and other employees (officials) 
of the commission to the right bank of the Gandoca River at its outlet into 
the Atlantic Ocean, and we then started from there the survey of the beach 
m order to trace the maritime mile involved, in the following manner : S. E. 
49°, 444 meters; S. E. 53°, 373 meters; S. E. 60°, 294 meters; S. E. 73°, 182 
meters; S. E. 63°, 740 meters; S. E. 56° 15', 1,370 meters; S. E. 58° 15', 



20g 

1,075 meters; at the end of this distance we came to the left bank of the 
Sixola River at its outlet into the Atlantic Ocean, and we went up stream 
on the same side in the following dii-ections and distances: S. E. 26, 64 
meters; S. W. 12, 50 meters; S. W. 40, 108 meters; S. W. 20, 90 meters; 
S. W. 2, 250 meters; S. W. 36° 30', 128 meters; S. W. 15° 30', 134 meters; 
S. E. 13° 30', 125 meters; S. E. 32, 323 meters; S. E. 53° 45', 192 meters; 
S. E. 57, 412 meters; S. E. 27° 30', 462 meters; S. E. 15, 180 meters; 
S. E. 4° 30', 205 meters, and from this point we traced the maritime mile 
in a line parallel to the sea and to a distance of one thousand six hun- 
dred seventy-two meters, in compliance with the prescribed rules as follows : 
N. W. 63°, 1,870 meters; N. W. 58° 45', 1,145 meters; N. W. 56° 15', 1,175 
meters; N. W. 62° 45', 1,485 meters; N. W. 51°, 933 meters, and finally 
tested the distance whence we have started the survey and fomid as result 
1,672 meters in northeasterly direction, 41° in a hne perpendicular to the 
sea at that point, and with that operation we ended the part concerning 
the measurement of the maritime mile. We then proceeded at once to 
the general survey of the tracts as follows: S. W. 20°, 8,920 meters; N. W. 
52° 45', 9,555 meters; N.W. 64° 45', 9,840 meters; S. W. 79°, 2,205 meters, 
with that distance we arrived at the left bank of the Sixola River at the 
termination of the road that leads from Old Harbor to Cuabre and we 
continued the siuvey, down stream along the Sixola on its left bank as 
follows: {here follow a great number of courses mid distances), at the end 
of which distance we come to the known point where begins the line 
that separates the maritime mile from the tracts surveyed, and where 
therefore the measuring of the whole peiimeter comes to an end. Re- 
spectfull}^ yours, Agustin Gutierrez. 
San Jose, February third, nineteen hundred and five. 

To the Judge of Contencioso Administrativo: 

Since the work covering the survey of the land to which this file refers 
has been completed, I beg to inform you that this survey was carried out 
in 45 days; for the work we used a chain of twenty meters and a compass 
with prisma and absolute numeration, number 360 corresponding to North, 
90 to the East and continuing in that direction all the other points. 
The land surveyed is flat quite near the Sixola River, but not so in the 
parts removed from that river, where there are sundry hills and even moun- 
tains of fair height. The quaUty of that land is in its larger part good for 
cultivating cacao, bananas, and other tropical products, as is seen from 
simdry plantations which I had a chance of visiting. There is plenty of 



204 ■ 

Water, but not of good quality, Ijecause the greater part of the rivers and 
brooks which are tributaries of tlie Sixola River comes from swamps and 
marshy lands. Owing to the general exuberant growth of vegetation, there 
are many large trees, but the greater part of the trees arc not good for 
construction purposes because of the bad quality of the wood. 

There are no natural pasture grounds of any kind. Finally the distance 
between the mouth of Sixola River and Liinon City following the coast of 
the ocean is eighty-three kilometers, because from the former point to the 
building erected by the Municipahty of Lmion at Cahuita there are 43 
kilometers according to the survey made by the undersigned and from 
the latter point to Limou as far as could be learned there are forty kilo- 
meters. In the straight line from the Sixola to Limon, I am told, there 
would be say 60 kilometers more or less. Enclosed corresponding plan 
made on the scale of 1-10000 as ordered by you. The sm'face has been 
calculated in compliance with the exact system called Latitudes and 
Distances, which gave as a result a total surface of six thousand one 
hundred and twenty hectares, from which we deduct two per cent, for 
roads, in accordance with article 2° of the decree of the six of August 
eighteen hundred and ninety-two, leaving six thousand hectares which 
is the area denounced. San Jose, February fourth, nineteen hvmdred 
and five. Judge of the Court of Contencioso Administrativo, Agustin 
Gutierrez, E. Peyroutet, Viriato Espinach. 

To the Judge of Contencioso Administrativo: 

I have revised the plan of lands denounced by CaroUna de Astua and 
associates in Sixola and transfen'ed to the United Fruit Company, and 
the same together with the papers belonging thereto is quite correct; 
Enclosed the two copies required by law. San Jose, March 22, 1905. 
Leonidas Carranza. 

Court of Contencioso Administrativo of the Republic. San Jose at two 
P.M., November 18th, 1905. 

Comply with the decree of the Superior Court, and deliver therefore the 
original decrees to the Surveyor Licentiate Agustin Gutierrez who surveyed 
the land in question in order that he separate the part of the "prohibited 
mile-tract" which he might have comprised in his operations, for which 
he is allowed 30 days' time. A. Castro Carrillo, Alejandro Jimenez Car- 
rillo. 



205 

Judge of the Contencioso Administrativo: 

In compliance with your order of 2 p.m. of the eighteenth of November 
of last year, the following is respectfully submitted by the undersigned: 
The prohibited mile on the Sixaola River extends in normal times up to 
three thousand seven hundred meters up stream from the mouth of that 
river, but in view of the fact that during the great tides of the year that 
rise of the sea might extend as far as six thousand four hmidred and 
thirty meters from its mouth, where the difference in the level of the 
river water is more than two meters and, although the greatest tides 
could not reach this distance since the height of these tides at the 
Atlantic never comes up to one meter 50 centimeters, especiahy if one 
considers also the resistance offered to the inflow by the descending water 
of the river, I would say that notwithstanding these evident con- 
siderations, I have thought proper to extend to this point the place 
where the part of the forbidden mile on the Sixaola River should be 
cut off. I have therefore started to survey the part which is to be de- 
ducted from the general area, from the Estacion 194 as follows (see top of 7), 
at the end of this distance we come to the end of the mile which belongs 
to the ocean (i. e., the maritime mile), and this is then bounded by 
the following directions and measru'enients : N. W. 63° 1,870 meters; N. W. 
58° 45' 1,145 meters; N. W. 56° 15' 48 meters, and from that point a 
perpendicular line is drawn to S. W. 33° 45' and with a distance of three 
hundred and eighty meters we reach Estacion number 194 or the point 
where the previous operation had been started, therefore the part which 
legally is not denounceable has been separated from the general tract. 
After calculating the area of the land comprised within the preceding per- 
imeter we obtain a surface of one hundred and forty-nine hectares four 
thousand eighty five square meters, which subtracted from the total area 
of six thousand hectares reduces the denouncement to which this file refers 
to five thousand eight hundred and fifty hectares and five thousand nine 
hundred and fifteen square meters with the following boundaries: North: 
maritime mile and unappropriated land. South : Sixaola River, East the 
same Sixaola River, and the part of the undenounceable mile of this river 
and to the West unappropriated land. With red ink I have marked in the 
plan retm-ned to you the part which must be subtracted as being comprised 
in the undenounceable mile. I have therefore complied with the order of 
yours referred to in the beginning of this report. San Jose, December 
eleventh, nineteen hunderd and five. Agustin Gutierrez, 



206. 

Judge of Coniencioso Administrativo: 

I proceeded with the operation necessitated by the above decree, and 
it is seen that the work done by the siu'veyor is well done. The part 
separated is therefore as indicated in his report of the 11th of the 
current month. I return this with the corresponding plans. San Jose, 
December 15th, 1905. Leonidas Carranza. 



Court of Coniencioso Administrativo of the Republic. San Jose, at one 
P.M. of January 26th, 1906. 

The parties, Mrs. Carolina Lizano UUoa de Astua, housekeeper, Jose 
Astua Aguilar, Lawyer, and Rodolfo Rojas Montera, mechanic, of age, the 
first two married, living here and the third one Uving in the city of Heredia, 
appeared before this court for themselves, the second also in representation 
of his minor children of legitimate birth, Jose Antonio, Graciela, Dora, 
Mercedes, and Margareta Astua Lizano, all of them still quite }'oung, the 
third party also in representation of his legitimate children imder age Lola, 
Maria, Adilia and Graciela Rojas Gonzales, these four going to school, 
denouncing five hundred hectares of land for each and five hundred hectares 
for each of the minors aforesaid, of unappropriated land situated in the Zone 
of Talamanca, sole district and sole Canton of the Coimty of Limon. 

Whereas the publication of said denouncement in the Official Gazette 
had been ordered and this has been done, and whereas the time allowed for 
opposition had passed without any such bemg presented, and whereas the 
parties interested submitted a request to that end, the denouncement was 
admitted, the survey of the land was ordered and a surveyor appointed to 
that end; Whereas by virtue of certam transfers made by the denouncing 
parties, with the permission of the court as far as those imder age are con-, 
cerned, the right acquired by the denouncement passed over to John Meiggs 
Keith Faulkner, and his children imder age Rosa, Emily, John and Henry 
Keith, Minor Cooper Keith y Meiggs, Mariano Guardia Carazo, Edgar 
Hitchcock Kinyon, Manuel Monte jo Herbert, David Andrew Johnston y 
Stevenson, and Felix Echevarria Zeledon; 

Whereas after the survey had been completed and the documents and 
plans thereof had been revised without objection, they were approved, a 
subsequent exclusion had to be made however by order of the Superior 
Coiu-t dvu'ing the pendency of judgment on some opposition that had been 
raised and which was settled by judgment of the court; 

Whereas, after the proceeding ordered by the superior court consisting in 



207 

cutting out from the lands smveyed the part of the non-denounceable mile 
which might have been comprised therein had been compHed with by the 
surveying engineer and approved by the auditor, the report of these latter 
made it evident that the land comprises a surface of five thousand eight 
hundred and fifty hectares and five thousand nine hundred and fifteen square 
meters, after deducting the two per cent, requii-ed by law for wa3^s and roads, 
with the foUoAAing boundaries: To the north the maritime mile and unappro- 
priated land, to the south the Sixaola River, to the east the same Sixaola 
River and the part of the non-denounceable mile of said river and to the 
west unappropriated land; 

Whereas, at tliis stage of the matter there haA^e been presented new 
transfers by means of which the hcentiate Astua Aguilar as dul}^ appointed 
executor transfers the rights to the said denoimcement held formerly by 
his deceased daughter Margarita, and the other parties interested transfer 
all their rights to the Northern Railway Company represented b^'^ its legal 
agent John Meiggs Keith, who in its name has accepted such transfers; 

Whereas the said Mr. Keith, in his character as above, petitions for the 
approval of the transfers made in favor of his grantor, and that he there- 
fore be considered as sole party, also that there may be awarded to the 
company he represents all the land sm-A^yed to which the denoimcement 
refers on accoimt of the eleA'en thousand and more hectares to wliich it is 
entitled according to the accompauAong deed: the latter shows that the 
mimicipaUty of the Canton of the ProAonce of Cartago, duly authorized, 
sold to -the company the elcA-en thousand three hundred and fourteen hec- 
tares fiA'e thousand two himdred and fifty three square meters of land to 
the free award of Avhich it AA-as entitled according to decree number 53 of 
the eighteenth of August nineteen himdred and four and other proAosions 
therein cited; 

Whereas the district attorney approA^es entirely of the petition and 
agrees A\-ith the agent of the company interested in fixing as price of the 
adjudication for the state that of three colones per hectare whereby the 
formahties required in the case are met and whereas the work of the sur- 
veyor has been accepted by the parties which excludes from the orig- 
inal surA'eA' that part which should not haA'e been comprised therein, so 
that now as surface of the iland denounced that which is inchcated in the 
corresponding report must be considered and approA^ed; 

Whereas transfers haA'e been made by ah the parties interested in 
the denouncement according to the law, said transfers inA'ohang the 
rights acquired hj them, to the Company which has been organized 



208 

according to the laws of the State of New Jersey, U.S.A., with its prin- 
cipal office at Jersey City, properly registered here in this state and 
known under the name of the Northern Railway Company, representeil 
by John Meiggs Keith, as legal attorney, according to power submitted 
proving such fact, and whereas said transfers should be approved, the 
said company is considered as sole party and the identity of Mr. Keith 
established to the satisfaction of the court; 

Whereas the company aforesaid has shoMTi itself by deed to be the 
owner by purchase from the Municipality of the Canton Central of la Pro- 
vincia de Cartago, of all rights possessed by the latter to the free adjudi- 
cation of eleven thousand three hundred and fourteen hectares five thou- 
sand two hundred fifty-three square meters of unappropriated land, the 
adjudication which is asked on account thereof is admissible because the 
land involved and to which the petition refers, has the character of un- 
appropriated land and there exists no exception in the case in hand. 
Whereas, as regards the appraisement involved, and agreed upon, this 
formality is merely a matter of the fiscal rules, because a free award 
is involved, wherefore it should be accepted, and a decree issued which 
allows the petition on the basis of all that has been explained above : 

Therefore, The proceedings made of late by the surveyor shall be and 
are hereby approved, and Ms report on the matter is to be considered 
as supplementary to the documents covering the survey: also the trans- 
fers made of all the rights acquired by virtue of the denouncement, to the 
Northern Railway Company are approved; the assignee is considered 
as sole party in these decrees and as legal agent of the same is ad- 
mitted Mr. John Meiggs Keith Faulkner, of age, married, contractor and 
an inhabitant of this city, pursuant to a power of attorney, which shall 
be returned to him after due cognizance has been taken thereof, and the . 
said company shall be adjudicated the land to which this document 
refers, consisting of five thousand eight hundred and fifty hectares and 
five thousand nine hundred and fifteen square meters, aside from the 
two per cent, for roads, situated in Talamanca, jurisdiction of the Dis- 
trict of Limon and bounded as follows: To the North the Maritime mile 
and unappropriated land, to the South the Sixaola River, to the East 
the Sixaola River, and the part of the non-denounceable mile of that river, 
on the West by unappropriated land, on account of the larger amount to 
which it is entitled as successor of the MunicipaUty of the Canton Cen- 
tral of Provincia de Cartago, as is shown by the accompan5dng deed 
which shall be returned after it has been noted in these files, and an entry 
has been made thereon, 



209 

As price of the land which has been adjudicated the sum of 17,551 
colones 77J centimos is fixed for the purposes of the state treasury and 
report of this decree shall be sent to the National Treasury Office and 
submitted to the executive power with whose approval the public deed 
will be executed which is to serve as a title of property to the company 
which has received the adjudication. A. Castro Carrillo. — L. Zumbado 
R. Rodoniiro Origgi. 

San Jose on the 10th of March, 1906, in compliance ^vith the provi- 
sion of article 529 of the Fiscal Code the decree issued in this city by the 
Judge of Contencioso Administrativo is approved at 1 p.m. of the 26th 
of January, 1906, and this file is to be returned to the same official for 
the purposes thereof. Signed by the President Echeverria, Judge of the 
Contencioso Administrativo in the Republic. San Jose at half-past eight 
A.M. of the 13th of March, 1906. Inasmuch as the decree of adjudica- 
tion has been approved by the executiA^e power for the land to which this 
file refers the title covering the same is to be executed and the notary 
public Jose Luis Saenz is to be instructed to protocolize the correspond- 
ing documents which will serve as title for the party interested. A. 
Castro Carillo. — Ed. Gomez S. Rodomiro Origgi. 

/ certify that the decree in tvhich the adjudication is ordered is in perfect 
order and that the parties interested renounce the right of personal summons 
concerning the matter referred to above I affix 35 colones and 12 centimos 
in revenue stamps on the first certified copy which is issued herewith 
and deliver the same to Mr. Keith. Fees, 20 colones. The above instruments 
have been read- and compared ivith the originals in presence of witnesses 
Rafael Trejos, unynarried, law student, and Manuel Venegas, married, a clerk, 
both of age and domiciled here ivhom I certify to knoio and to possess the nec- 
essary legal capacity. The documents show this to be correct. Signed with 
the witnesses mentioned above in the city of San Jose at 10 a.m. on the 14:th 
of March, 1906. 

Jose Luis Saenz. 

Raf. Trejos. 

Manuel Venegas. 

This is a copy of document No. 10 taken from page 5 (back) to 9 (back) 
of the second volume of my protocols. 

This first certified copy was duly compared with its original before the 
witnesses mentioned and proved to be conformable and the same is issued 



210 

upon the petition of Mr. John Meiggs Keith at the same place hour and 
date as the original. 

Jose Luis Saenz. 
Raf. Trejos. 
Manuel Venegas. 
Registry fee 8 colones. 

Saenz. 

(Seal of the registry othce.) 

Fees 7 colones. Recorded in the registry of deed, District of Limon, 
volume 651, page 525, property 1099, entry No. 1. San Jose, March 16th, 
1906. 

Jose Maria Acosta. 
(Seal of the Public Registry of Deeds, Persons, 
and Mortgages, Republic of Costa Rica.) 



211 

LEGAL PROCEDURE through which the Northern Railway Company 
obtained possession of the land included in its deed on which 
McConnell's plantations he. 

24th March, 1906. 

Second: To His Honor the Judge of Contencioso Administrativo (File 
No. 2904. Denouncement of Unappropriated Land in the Juris- 
diction of Limon, in the zone of Talamanca) : 

I, Edgar J. Hitchcock, attorney of the Northern Railway Company, 
as shown by the accompanying power, and which I beg to have recorded, 
and to be returned to me thereupon, respectfully submit, as follows; — 

The land to which this denouncement refers has been adjudicated to 
the said company, and also the title of property has been issued, which 
title was duly recorded in the registry of deeds. The Company sliould 
therefore be put into possession of the land adjudicated, and I therefore 
petition Your Honor that you, through the authorities of the district 
of Limon, whom you may see fit to put in charge thereof, or in whatever 
form you consider proper, put this company into possession of the land 
belonging to the same according to the plan and survey documents. I 
herewith commission in the name of the company Mr. C. G. McGrigor, 
of Limon, to receive the possession from the hands of the authorities. 

San Jose, March 24th, nineteen hundred and six. 

(Sig.) E. J. Hitchcock. 

RiCARDO PaCHECO. 

20th April, 1906. 

To His Honor the Judge of Contencioso Administrativo (File Number 2904. 
Denouncement of Unappropriated Land in the Jurisdiction of Limon, 
Zone of Talamanca) : 

I, Edgar J. Hitchcock, known as party in these proceedings, respect- 
fully submit: — 

With real surprise I have learned that you have decided to reserve 
the decision on my petition concerning possession of the adjudicated 
lands for the time when the last opposition of Mr. McConnell is disposed 
of. I most respectfully call the aittention of Your Honor to the fact that 
the present denouncement is a settled matter, by dint of the approbation 
given by the government and by dint of the issue of the title, and that 



212 

to reopen the same taking in consideration the last opposition would 
mean a violation of Article 115 of the constitution, and other laws which 
establish and guarantee the definitiveness of judicial decrees. I also call 
your attention to the fact that by a favorable decision extant in the pro- 
ceedings of the first chamber of appeals, it has been declared that the 
opponent, Mr. McConnell, does not possess any right to intervene in these 
proceedings. For these reasons the new opposition should be rejected 
ex officio as irrelevant (see Article 1102 of the Civil Proceedings). If 
the part}' interested has anj^ claims to present he should proceed in the 
legal course and form. I again petition that in compliance with the law 
the company be given the material possession of that wliich has been 
adjudicated to it. To proceed in any other manner would mean to at- 
tribute greater importance to the pretensions already denied of a private 
person, than to a decree of the courts, than to a legitimate and recorded 
title, and than to a definite order of the supreme government, the only 
one possessing the faculty to definitely approve the adjudications of un- 
appropriated lands, and to object thereto if they are ihegal. The dis- 
trict attorney concurs with what has been stated above. 

San Jose, April twentieth, nineteen hundred and six. 

E. J. Hitchcock. 

23d April, 1906. 

Court of Contencioso Administrativo of the Republic. San Jose, at eight 
fifteen a.m. of the twenty-third of April, nineteen hundred and six. 

Mr. Edgar J. Hitchcock, as general agent of the Northern Railway 
Company, presented himself petitioning that his mandator be put into 
possession of the land to which this denouncement refers, for which a- 
title of property has been issued, which has been duly recorded in the 
registry of deeds. 

Whereas, after the presentation of this petition there was found to 
be pending another of Licentiate Ricardo Jiminez, as legal agent of Her- 
bert Lee McConnell, in which the same alleges an incident of nullity, 
of that which had been enacted, inasmuch as it had been omitted to notify 
hereof his mandator, as fact without intervention of legitimate party, 
so that it was decided to reserve the decision on the first one, until it 
should be in order, a hearing concerning the said incident having been 
decreed, and being pending, and whereas the said Mr. Hitchcock acting 
for the company which he represents ^lieges thfit the denouncenient 



^1^ 

involved is a settled matter, in virtue of the approbation given by the 
government and in virtue of the issue of the title, and likewise that pur- 
suant to a favorable decree of the first chamber of appeals it has been 
declared that Mr. McConnell has no right to intervene in the proceedings, 
petitioning again for the material possession of that which had been ad- 
judicated in which the district attorney concurred, stating that he was 
conformable, wherewith the hearings fixed concerning the incident of 
nullity involved here have been satisfied, and considering that here a 
matter already terminated by all the formalities required therefor is 
involved, so that the incident alleged is not admissible, and should so be 
declared, and in consideration of the fact that as regards the possession 
petitioned for must be allowed, as soon as the adjudication decreed is 
final, with all the formalities required in the case, and in further consid- 
eration of the fact that the land involved here is situate in the jurisdic- 
tion of the district of Limon, it is conformable with the law that the civil 
judge of that place be commissioned for carrying out the said act. For 
the reasons expounded, it is herewith decreed that the incident of nullity 
set forth on the part of Mr. McConnell is untimely, and therefore irrele- 
vant in these proceedings, and that material possession of the land ad- 
judicated be given to the company interested, wherefore the civil judge 
of the district of Limon is commissioned to whom therefore the original 
acts in the case shall be sent. 

A. Castro Carrillo. 

Alejandro Jiminez Carrillo. 



26th AprU, 1906. 
To His Honor the Judge of Contenioso Administrativo (File No. 2904. De- 
nouncement of Mrs. Carolina Lizano de Astua et al.). 

I, Ricardo Jimenez, known in these proceedings, submit to you: You 
have seen fit to declare without justification the exceptions of nullity 
alleged by me and to cause to be dehvered to the company represented 
by Mr. Hitchcock the lands without previous payment of the cultivation 
existing there. 

To order this you accept the citation from the constitution made by 
the author of the petition of the twentieth of April. Incidentally, inas- 
much as Mr. Pacheco in the whole of this petition entirely setting aside 
the courtesy wliich should prevail amongst colleagues, treats my last pro- 
ceeding as irrelevant, I would like to be pemiitted to express my surprise 



214 

at the fact that Mr. Pacheco, who has trodden under foot the constitution 
and has assisted in doing so continually, should be so bold as to cite it now 
showing himself a very good friend of it, as it were. I thought that that 
which he was obliged to in order to pay it his last homage was never to 
pronounce its name. I see that with equal disingenuousness he treads it 
under his feet or pretends to obey it. He is angered at the fact that I 
should insist on still asking justice for my client, probably this is madness 
of mine. It seems that it is the duty of the president, of his ministers, of 
the state attorney and of the justices, to hasten to satisfy the slightest 
desires of Mr. Keith. Nevertheless, so great is my belief in the force of 
reason, that I refuse to accept this theory, and insist on petitioning again 
and again that Mr. McConnell be done justice. The quotation of the con- 
stitution is badly applied, because here there is not a settled matter or 
process, nor perhaps even a declaratory judgment. Mr. McConnell is a 
party in these proceedings no longer as opponent of the denouncement, 
assuming that the decree of the court in this respect has been rendered 
correctly, liut as the possessor of improvements made in the land denounced. 
From the very start he has insisted on his quality as such, it has not been 
contested, and the uncommon fact that the denouncers ask the judicial 
delivery of the land shows that it is necessary to eject therefrom Mr. Mc- 
Connell, in order to put the denouncers into possession. Article 523 of the 
Fiscal Code pi-o\ddes clearly that within the proceedings of denouncement 
it is necessary to satisfy the rights of the third improver. Therefore only 
by treading under foot the rights of Mr. McConnell can he be denied the 
quality of party in this case, at least so far as his quality as owner of the 
improvements is concerned, a circumstance which gives to him the charac- 
ter of (proceeding) . I mean possessor in good faith, in agreement with the 
decree of the court of cassation, of the seventh of November, eighteen 
ninety-four. If he is a party and has not been informed of decrees which 
aSect him, it is clear that these decrees are not definitive, and vahd, and 
that therefore there is no settled matter or suit. If in a court of first 
instance a judgment should have been rendered mthout having again 
notified the defendant after the time a copy of the complaint had been 
made, would it then be possible to prevent him from exercising his rights 
of defence? Because the judgment had already been pronounced, with- 
out his having been notified or having interpleaded? Such is my case. 
On the other hand, leaving aside the nulhties, and considering the ques- 
tion of the payment for the improvements, it is nonsense to insist that 
Your Honor could not decide this point because a settled matter was in- 



215 

Volved. The adjudication made even in the case where it might have 
the character of res judicata, which it has not, might be an obstacle for 
my continuing the impugnment of said adjudication; but the question 
on improvements, far from (supposing) I mean, far from questioning 
the adjxidication, presupposes it, and on this point of improvements there 
has not been rendered any judgment of yours, and still less so any ren- 
dered by the chamber of appeals. 

This question of improvements is strictly analogous to that of the ex- 
ecution of a judgment. 

It is your duty to try and pass on this question; and, since Mr. McCon- 
nell is possessor in good faith for the effects of the improvements, he has 
the "right of retaining in his possession," as per article 328 of the civil 
code. And when you order him to deliver the plantations without his 
being indemnified, that which you do is to deprive him illegally. If you 
are a just judge, and worthy of the name of Carillo, your obhgation is to 
revoke your decision, at least as far as that part is involved. 

Basing on what has been expounded above, I petition that yourevoke your 
last decision, that you declare founded the nullity alleged, that you cause 
proofs to be furnished as to the fact that my client has improvements in 
the said land, should you doubt this fact, that you order these improve- 
ments to be ap])raised by experts, and that you declare that as long as 
McConnell is not paid for them the delivery of the land to the denouncers 
cannot take place. If you fail to concede the total or partial revocation, 
I at once enter an appeal against the said decision, and indicate my office 
for any notifications on the trial in the .second instance. 

San Jose, April twenty-sixth, nineteen hundred and six. 

RiCARDo Jimenez. 



30th April, 1906. 
[Translation.] 

To the Judge of Contencioso Administrativo. (File No. 2904. Denounce- 
ment of Government Lands in the jurisdiction of Limon, Talamanca 
Zone.) 
I, Edgar J. Hitchcock known in these proceedings respectfully state. 
I consider, in every sense of the word, that the decision as rendered by 
you throwing out the last opposition of Mr. McConnell and ordering the 



216 

material possession of lands asked for by me as legal and adjusted in accord- 
ance with the law. As a consequence I ask that the revocation of such 
decision as petitioned by the lawyer of Mr. McConnell be declared as with- 
out foundation. 

In the event that the proposed appeal be accepted by you, I designate the 
office of the undersigned lawyer as that to receive notifications. 

I would also call your attention to the fact that this appeal in accordance 
with the law should be executed in the sense of being returnable. 

San Jose, April 30th, 1906. 

(Signed) E. J. Hitchcock. 
(Signed) Ricardo Pacheco. 



10th May, 1906. 

First Chamber of Appeals of the Supreme Court of Justice. File No. 2904. 
Denouncement of Government Lands in the Zone of Talamanca, juris- 
diction of the District of Limon. 

[Translation.] 

I, Edgar J. Hitchcock known in these proceedings respectfully make 
known. The Judge of Contencioso Administrativo ordered that there 
should be given to my principal the Northern Railway Company the pos- 
session of the lands which were adjudicated to same. The opposing party 
has appealed against that decision, alleging defeasance which have already 
been presented and re-presented in these proceedings, as can be verified by 
a casual examination of the file in question. 

The Attorney for>Mr. McCoimell makes special mention of the Cultiva- 
tions which liis chent has on the land, the value of wliich have not been paid 
to hun. Although Mr. McConnell may have such improvements, the pres- 
ent status of the denomicement certainly does not permit of this paralyzing 
the comphance of judicial decisions thereby opening debate on points 
which have long since been alleged without having brought forth any proof 
whatever. This same Chamber has recogiiized tliis fact, and declared in 
its last sentence which appears m the Denouncement file that Mr. McConnell 
is not a party in this matter, and that he has no right to interfere in the 
proceedings, and mvich less now in the compliance of a judicial decision. 
This Chamber also saw fit to declare that Mr. McConnell had not proven 



217 

the existence of liis cultivations; and, if this at that time was sufficient 
reason to disquahfy his intervention in this denouncement, it must be 
more so to-day that the proceedings have been completed by virtue of the 
execution of and registered title wMch I now present, the return of which 
is hereby recpested. 

The prosecution of a public document such as this executed mider all 
formahties of the law and which credits the unquestionable right of my 
client to the denoimced lands cannot be suspended without accusing such 
action as being criminally false. Ai'ticles Nos. 735 and 73G of the Civil 
Code. To proceed in any other manner would be to concede a greater 
respect to the pretensions which have been debated and thrown out, to 
proceedings which were clearly carried on to unpede my client from realiz- 
ing the right of possession to which it is entitled rather than to an authen- 
tic document or to final decisions rendered by this same Comt. 

If Mr. McConnell has any rights which he wishes to make valid, let him 
do so in the customar}^ way and maimer. 

The possession of good faith which he invokes was not accredited m the 
proceedmgs of the Denouncement at an opportime time, and cannot, as 
a consequence, serve as a basis for the pretended right of retention. 

The case as described by Ai-ticle 328 of the Civil Code does not cover the 
class in question for the reason that Mr. McConnell is not nor has been the 
possessor of the right to the lands of my principal. The best proof of this 
that can be brought forward is that during all the time that he has been 
opposing^ the Denouncement he has never endeavored to make good his 
right of possession. He is well aware that the land in cpestion is Govern- 
ment land, and has never even alleged having acquired in any inamier as 
established by the Fiscal Code the right to possess. It is no more than 
just that he should be paid for the Betterments which he may have, and 
the Company to whon'i the lands have been adjudicated does not pretend 
to enrich itself with same. It is ready to ventUate this question as soon as 
he may bring same forward m legal form; but this should not give him the 
right to disttu-b the possession asked for and wlrich is an inevitable conse- 
quence of an executed title. He who denounces can only prevent the 
party to whom adjucUcation may be given taking possession |when the cost 
of survej's may not have been paid to him; and, further, he who alleges 
to have betterments without having proved the fact lacks all such right. 
The Civil Code in referring to possession treats as is weU known of those 
who possess, m the capacity of proprietors or at least those who have the 
right to possess or some title which may legitimize such possession; but 



218 

he who takes same without being authorized by law, without anybody 
having transferred to him the right to possess even though it be of a pre- 
carious character cannot invoke the guarantees estabUshed for such by 
law. All that the Fiscal Code authorizes and which is sufficient, after legal 
steps may have been taken, i§ the right to collect the value of betterments. 

In conclusion, the Company which I represent is disposed to discuss this 
matter of betterments if such be the desire of the opposmg party, although 
it be one now outlawed; but what it does not consent to is the loss of more 
time in the fulfihnent of stanch sentences and to be kept out of the pos- 
session which it has asked for, and which is a consequence of the accredited 
proprietorship by a registered title, and which is the ordinary procedure, 
legal and current, the coronation and end of denouncements which reach 
the status which the present one enjoys. 

In view of the foregoing 1 pray that this Court confirm the decision of the 
Judge of Contencioso Administrativo. 

San Jose, May 10th, 190G. 

(Signed) E. J. Hitchcock. 
For the presentation. 

(Signed) Ricardo Pacheco. 



DECISION of the SUPREME COURT declining to pennit the Northern 
Railway Company to enter into possession of the land occupied by 
McConnell's cultivations until his rights therein should be settled. 

16th May, 1906. 

First Chamber of Appeals of the Supreme Com-t of Justice. San Jose, at 
three p.m. of the 16th of May, nineteen hundred and six. 

Re denouncement of some unapprojiriated land in the jurisdiction of the 
District of Limon, effected by Messrs. Carolina Ulloa de Astua & Cons., 
granted now to the Northern Railway Company and to which Mr. Herbert 
Lee McCoimell Scott opposes himself, being represented by Licentiate 
Ricardo Jiminez Oreamuno. 

Whereas Mr. Jimenez Oreamuno appealed from the decision handed 
down by the Court of Contencioso Administrativo matters of the repubhc at 
eight fifteen a.m. of the twenty-third of April last, wherein the objection 
of nuUity advanced by Mr. McConnell for being extemporaneous and there- 



2lS 

fore inadmissible in these proceedings was declared sine causa, and whereby 
it was ordered that material possession be given of the land adjudicated, 
to the interested company, for which pm-pose the coiu't instructed the civil 
judge of the district of Limon to whom for the pm-pose indicated the papers 
in the case were sent, and whereas this appeal was allowed, and considering 
that 

I. The decision appealed from, dated twenty-third of April last, 8.15 
A.M., in so far as it declares without cause the nulhty of the proceedings as 
alleged by McConnell, because of the non-notification of him of the decisions 
made in the course of said proceedings, is found to have been made accord- 
ing to law and should be confirmed because of its having been declared by 
a majority of this court (confer page sixty-seven) that the opposition to 
the denouncement as formulated by Mr. McConnell is without cause and 
that the matter, in spite of said opposition, should be continued and car- 
ried into effect, with the permission given thereto in the same decision, 
and considering 

II. As far as the fact is concerned that the decision appealed against 
orders that the company to whom the land has been adjudicated be put 
into possession of the real estate, it should be revoked, an objection havuig 
been presented by Mr. McConnell demanding a declaration acknowledgmg 
that he has improvements existing on the land in question, and that these 
should be paid to him before he can be dispossessed therefrom, as he pos- 
sesses the right of retention. This point is to be settled, first, in the same 
proceedings, because if the assertions of the said gentleman should really 
be justified, it would not be legal to deprive him. aheady now of the pos- 
session. 

Therefore the decision appealed from shall be confirmed as far as the 
same declares without cause the nuUitj' to which it refers, and shall be 
revoked in that part which orders that the adjudicatory company be put 
into possession of the land, which part for the time being is declared to 
be void, because it is necessary that first the question of improvement 
and the right of retention invoked by Mr. McCoimell be settled. 

Alberto Brenes. 

Benito Serrano. 

Luis Davila. 

Manuel Saenz C, Secretario. 



220 

Note. — Justice Alberto Brenes saved his vote in the present matter 
as follows: He accepts the "whereas" considering that in a decision 
rendered by this chamber dictated at three forty-five p.m. of the fifth 
of October of last year, as can be seen on page 75 of the records, the pe- 
titions and oppositions of Mr. McCoimell were denied and that the gov- 
ernment has issued already title of possession in favor of the denouncing 
parties or then- assigns, the taking of possession caraiot nor should it be 
impeded, such taking possession being claimed by the owners of the land 
adjudicated. 

Therefore, he votes that the confirmation of the decision appealed 
against be made to cover all parts thereof. 

Alberto Brenes. 

Manuel Saenz C, Secretary. 



27th July, 1906. 

To the Judge of Contencioso Administrativo (Denouncement of Dona Caro- 
lina Lizano de Astua and others) : 

I, Ricardo Jimenez, legally appointed agent of Mr. McConnell, beg to 
submit to your [honor.] 

To justify [ascertain] the cultivations and other improvements and 
their value, I move the following proofs by witnesses, experts and by 
local inspection: — 

I. 

I petition that the justice repairing officially to the places where said 
plantations, buildings, etc., are, visit the land, convince himself of the 
existence of the improvements as well as of the size of the cultivations 
and cause an official protocol to be made thereof. 

II. 

I petition that the witnesses which I shall present at the time of in- 
spection of the places depose whether it is true that all the cultivations 
and improvements have been made for the account and at the order of 
tl^e said my mandator who was and is in public and peaceful possession 
of all said improvements. 



^21 

III. 

I petition that experts estimate most carefully the plantations, build- 
ings and other improvements that there are. 

San Jose, 27th of July, 1906. 

(Signed) Ricardo Jimenez. 



9th Nov., 1906. 
Court of Contencioso Administrativo of the Republic. San Jose, on the 
ninth of November, nineteen hundred and six, 9 a.m. 

Whereas : 

Licentiate Ricardo Jimenez, authorized representative of Mr. Herbert 
Lee McConnell, submitted on the twenty-third of August last amongst 
other things to this court, that his mandator has transferred the owner- 
ship of the plantations and improvements to which these files refer, as 
well as all his rights referring thereto, to the concern ' ' The American 
Banana Company" of the City of Mobile; that he makes this declara- 
tion in compliance with instructions received by Mr. McCoimell, and that 
he withdraws from the intervention which as an authorized agent of the 
said gentleman he had had in the present case. 

2. Whereas Mr. Edgar Hitchcock, representing the Northern Rail- 
way Com-pany basmg on the foregoing declaration, insists that, owuig 
to this desistment which he accepts, there remains no longer any cause 
which might retard the material possession of the land adjudged (to it) 
and petitions that it be ordered that said possession should be granted 
to the company, his mandator. 

3. Whereas this court Ijy an order of the twenty-third of April last, 
at 8.15 a.m., decreed that material possession be given to the concern 
The Northern Railway Company, the first Chamber of Appeals re- 
voking, however, this order by a resolution of the seventeenth of May, 
3 P.M., of this year, being of the opinion that, inasmuch as Mr. McConnell 
had entered an objection demanding payment of improvements made 
on said land, before being dispossessed thereof on the ground that he en- 
joyed the right of retention, this point should be first settled, because, 
if the allegations of the objecting party shoidd really prove to be well 
founded, it would be an illegal act to deprive him now of the possession; 
and 



222 

4. Whereas a hearing was fixed for the other parties in tliis case regard- 
ing the petition of Mr. Hitchcock, of which Mr. McConnell or Mr. Jim- 
incz did not a^'ail themselves, while the District Attorney sided with the 
petition for possession. 

Considering 

1. That Mr. McCoimell, through his authorized agent, has not opposed 
himself by claimmg his riglits, having, aside from objecting once more 
that the Courts of Costa Rica had no jiu'isdiction to pass on acts done in 
the territorial district where his improvements are, manifested that he 
has transferred to the American Banana Coynpany all the rights that 
come to him because of them (improvements). 

2. That when now granting material possession of the land in which 
said improvements are, the payment of which is under discussion, said 
material possession having been petitioned for by the representative 
of the Northern Railway Company, such a decision would conflict with 
the resolution of the First Chamber of Appeals to which the third whereas 
refers. 

Now, THEREFORE, 

The party claiming the improvements is declared in default. 
It is declared that at the present moment the granting possession is 
not declared feasible of the material possession as demanded by the rep- 
resentative of the Company to which the land has been adjudged, until 
after the proceedings indicated by the Supreme Court have come to a 
close. 

(Signed) Cipriano Soto. 

(Signed) t^ejandro Jimenez Carrillo 



223 

DECISION of the SUPREME COURT ordering possession of the lands 
containing McConnell's cultivations in Costa Rica to be given to the 
Northern RaUway Company. 
First Chamber of Appeals of the First Supreme Court of Justice ; San Jose, 
at nine a.m. of the third of December nineteen hundred and six. In 
the files of denouncement of some unappropriated land in the jiu-is- 
diction of the Canton of Linion, made by Carolina Lizano Ulloa and 
companions, now transferred to the Northern Railway Company, and 
to which Mr. Herbert McConnell Scott opposed himself, represented 
by Licenciate Ricardo Jimenez Oreamuno, this being a matter under 
the jurisdiction (competence) of the Judge of Contencioso Adminis- 
irativo of the Republic: 
Whereas Mr. John M. Keith, authorized agent of the said company, 
appealed from the resolution handed down at nine a.m. of the 9th of No- 
vember last, whereby the party claiming the improvements was declared 
in default, and whereby it was declared that it was not feasible to give at 
that time the material possession demanded by the representative of the 
company to which said lands had been adjudged, and that it was neces- 
sary that the proceedings indicated by the Superior Court should fii-st have 
come to an end ; 

Whereas, as long as Mr. McConnell (H. L. MacConnell) , who has claimed 
the payment for the improvements made on the lands adjudged to the 
Northern Railway Company, has withdrawn from the present case, declar- 
ing that he has transferred all his rights thereto to a foreign company, 
and that he fails to recognize the jurisdiction of Costa Rica as regards the 
tracts denounced, the former resolution of this chamber cannot any longer 
be carried out because the claimant has withdrawn from the case by virtue 
of his withdrawal— and as one nmst necessarily consider such withdrawal 
as the abandonment of his claim — said withdrawal having been accepted 
by the opponent party, it therefore being proper that possession be given 
to the owners of said tracts as the direct consequejice of the ownership, — 
Therefore, and in compliance with the articles of the Civil Code, num- 
bers 264-277, 410, and 411 of the Code of Civil Proceedings, the decision 
appealed against is herewith revoked, and it is ordered that the material 
possession be accomplished as prescribed here, without prejudice to the 
rights of third parties which Mr. McConnell or anj'- other person or cor- 
poration which represents him or may be cessionary of his rights may 
have concerning the cultivations and other improvements; and the author- 
ity that puts into possession the Northern Railway Company shall de- 



224 

scribe in detail the condition of the property in general, its cultivations 
and buildings that may exist thereon, and with all the other details that 
said authority may consider proper for defining the rights of any improver 
which might be shown hereafter. The Secretary of the Treasury shall 
be given duly indorsed the check presented jjy the company to whom the 
property has been adjudged, for the purpose of cliallenging " sine causa" 
Judge Davila. 

Alberto Bkenes, Benito Serrano, Marcelo Brenes, Mani'el 
Saenz C, Secretary. 

Note. — Mr. Justice Benito Serrano dissented. 

ORDER of the COURT of CONTENCIOSO ADMINISTRATIVO to the 
Govei-nor of Limon directing him to give possession of the said lands, 
through the instrumentality of the Police Service, to the Northern 
Railway Company. 
Cipriano Soto, judge of Conlencioso Administraliro of the Republic of 
Costa Rica, respectfully informs the Governor of the Canton of Limon that 
in the file of denouncement of an unappropriated tract situate in the same 
canton there occurs the following resolution which textually says as fol- 
lows: "Court of Coniencioso Adminisirativo of the Republic. San Jose, at 
nine a.m. of the fifth of December nineteen hundred and six; to be carried 
into effect; give to the Northern Railway Company the material possession 
it petitions for, of the land adjudged to it, thi'ough the Police Authority 
of the District of Limon in compliance with article 741-742 and 1039 of 
the Code of Civil Procedure. And therefore letters requisitorial as de- 
manded in law to the Governor of the said Canton in order that he himself, 
or some official of the police that he may designate for the purpose, pro- 
ceed to carry into effect that which has been ordered, with the understand- 
ing that in the act of possession there shall be described in detail the con- 
dition of the property in general, the cultivations and buildings that may 
exist thereon, and other details that he may consider suitable for deter- 
mining the rights of any improver that might be deduced later on; but 
before that the adjudicatory company shall furnish the surety of 200 
colones to which the previous promemoria refers"; therefore and whereas 
the said surety has aheady been fm'nished, I request your excellency that 
you cause the said decision as here inserted to be carried into effect, 'giving 
possession thereof as demanded, pursuant to the title-grant and plan of 
the lands in question which I beg to send to j'ou together with the present 
letter. Given at San Jose at one forty-one p.m. of the fifth of December 
nineteen hundred and six, Cipriano Soto, Alejandro Jimenez Carrillo. 



225 



ORDER from the GOVERNOR of LIMON to the CHIEF OF POLICE 
of LIMON. 

Office of the Governor of the Canton; Limon, at twelve (noon) of the 
seventh of December nineteen hundred and six; to be carried into effect; 
for this pm-pose I commission the chief of poUce of this city to whom 
title-gi-ant and plan received shall be delivered with these letters requisi- 
torial. Francisco Saborio; F. Golcher. 

Office of the Chief of PoUce at two p.m. of December seventh nineteen 
hundred and six: To be carried into effect; the undersigned will repau- to 
the land referred to on the accompanying letters requisitorial for the pm-- 
pose of putting into possession the Northern Railway Company, of such 
lands; for this purpose the 11, 12, ISth and 14th of the present months 
are designated. Filadelfo Gbanados; P. P. Boza, Nap. Sequeinara. 

On the 11th, 12th, and 13th of December, the Chief of Police of Limon, 
with proper assistants and an engineer, proceeded to the Sixola River and 
dtdy and legally carried out the foregoing decrees of the Supreme Com-t 
and of the Court of Coniencioso Adminisiraiivo, and the order of the Gov- 
ernor of Limon, and formally placed the Northern Railway Company in 
full and actual possession of all the lands north of the Sixola River, in- 
cluded in the Astua denouncements, on which cultivations of McConnell lie. 



226 



CHAPTER 8. 

Showing the efforts of McConnell hi Panama in 1906 to procure action of 
the government of Panama to take away from Costa Rica the jurisdiction of 
the disputed territory north of the Sixola River, and the action of the National 
Assembly of Panama rejecting his interference. 

Herbert L. McConneli-. 



SOVEREIGNTY OF PANAMA AND THE REGION OF THE 
SIX AOL A. 

Question of Patriotic Interest. 

Promemoria Addressed to the National Assembly. 

DRAFT OF PROPOSED I AW 

(whereby the National Sovereignty is extended beyond tlie Sixaola River). 

The National Assembly decrees: 

Article the First. The Executive shall at once proceed to take actual 
possession of the land situated to the north of the Sixaola from the mouth 
of said river as far as Cinocere, near Cuabre, and from there to the Cabo 
Mona on the Atlantic Ocean, which according to the Constitution forms 
a part of the national territory. 

The government is authorized to conclude a contract for the construc- 
tion of a pier at the point of the coast known as Gandocan. 

Article the Second. The present shall be in force from the moment 
of its being sanctioned. 

Given in Panama 



Mr. President of the National Assembly, Honorable Deputies: 

1 the undersigned, Herbert L. McConnell, a citizen of the United States 
of North America, temporarily in this capital, submit the following, as may 
seem best, in my own name : — 



227 

Some time after the promulgation on the part of the President of the 
French Repubhc of the arbitration decision which put an end to the boun- 
dary controversy between Colombia and Costa Rica, and pursuant to the 
fact that the said decision adjudged definitely to the former the so-called 
Sixaola and Talamanca Valleys, I occupied, in the character as explorer 
and colonist, under the protection of the Colombian laws (61 of 1874 and 
48 of 1882), the region through which flows the river of the same name from 
the place where it flows into the sea to a site called Cinocere, about three 
miles below Cuabre. 

In the first days of the month of April, 1903, I began the work, and 
in June 1904, I. sold the rural property to a company called The Ameri- 
can Banana Company. The latter canied out important improvements, 
but it has not been able to derive from the enterprise the profit which justly 
could be expected, because of the obstacles with which I sjiall entertain you 
further on. The plantations now extend themselves over a surface of about 
three thousand five hundred (3,500) manzanas to the right and left of the 
river, and have a productive capacity of more than one hundred thousand 
(100,000) bunches per month. The cash capital invested in this immense 
undertaking amounts in all to about $300,000 American gold. 

I content myseK with submitting to you these data of a general character 
without accompanying same by proofs which would show the truth of 
my statements, for I am not spealdng to you in the name of private inter- 
ests with an object of soliciting for them guarantees and protection which 
not you, but the Executive Branch of the State Power is called upon to con- 
cede, pursuant to the laws. 

My present desire is directed towards submitting to your consideration, 
as depositaries that you are for the sovereignty of the Republic, a question 
of an eminently national character bearing on the Sixaola region, — a question 
which for the very fact that it bears on that zone of the territory of your 
country affects directly the banana interests rooted there. This ex- 
plains my presence before you. 

As has already been stated, the banana plantations extend from the 
mouth of Sixaola River, stream upward, to the right and left, as far as 
Cinocere, near Cuabre; but, inasmuch, as that river in certain epochs of 
the year, in which it becomes torrential, does not offer any secure entrance 
to the vessels, I had to select at the coast a point which, connected by a 
tramway with the plantations, would serve as port for said vessels. The 
point selected for that purpose is called Gandocan, being a place situated 
between the Sixaola River and the Punta Mona, scarcely Ivnown prior to 



228 

the date to which I allude, and which I turned into a settlement, constructing 
there at ray expense sheds for materials and dwelling-houses for the 
laborers. 

Willie matters were in tliat condition, it occurred that in the month of 
July, 1904, Costa-Rican soldiers or armed guards invaded suddenly the 
region of the Sixaola, occupied the plantations on the left bank of this 
river, and hkewise the houses and sheds at Gandocan, suspending the work 
on the railroad or tramway in construction, and impeded, and have impeded 
up to the present time, the importation, at those places of provisions 
and the exportation of fruit. And, not satisfied with these acts of mani- 
fest usurpation, they laid, moreover, an embargo on two-thirds of a ship- 
ment of construction material consigned to me, and which had been 
passed through the custom-house at Bocas del Toro, pursuant to the laws, 
per the inspector of that port, Mr. Carlos Clement. 

Torn away by force, without legal formulas of any kind, from the enjoy- 
ment of those rights created by means of titanic efforts and a large in- 
vestment of capital, I have since then wandered from place to place, 
trying to bring about, l^y all means imaginable, the reinstatement into 
the territory of the Republic of Panama of the Sixaola Valley, which 
is yours, honorable deputies, over which you had exercised jurisdiction 
without protest from Costa Rica, and which the latter coimtry has oc- 
cupied since July, 1904, without more right than that of usurpation, and 
the possession of which you recover never, or but very slowly, if you submit 
the question thereof to the good will of the neighboring republic. 

I myself, although a foreigner, I have an interest, or I ought to have 
said an urgent necessity, in that that reinstatement take place. The rights 
of ownership and possession of the lands covered by the plantations of the 
Sixaola were acquired under the laws of Colombia, in force since then in 
the Republic of Panama, and therefore under the light of these laws and 
before the courts of justice of Panama these rights should be sustained and 
ventilated against any one that dares to dispute them. 

Therefore, the object of the representation I make before is to call forth 
the adoption of a law which should approximately comprise the following 
points : — 

The National Assembly decrees: 

Article the First. The Executive shall at once proceed to take actual 
possession of the land situated to the north of the Sixaola from the mouth 
of said river as far as Cinocere, near Cuabre, and from there to the Cabo 



229 

Mona on the Atlantic Ocean, wliich according to the Constitution forms a 
part of the national territory'. 

The government is authorized to conclude a contract for the construction 
of a pier at the point of the coast known as Gandocan. 

Article the Second. The present shall be in force from the moment 
of its being sanctioned. 

Given 

This law is rendered Mghly necessary because of its appropriateness, the 
pressing necessit}^ of this measure, and, moreover, incontestable reasons 
which I propose- to pomt out to you briefly, all the more so as to some of 
you they are akeady kno^Mi. 

These reasons are the following: — 

(1) That the re,gion to which I am referring is an integrant part of the 
Republic of Panama; 

(2) That over it the authorities of Panama have exercised jurisdiction 
without protest on the part of Costa Rica ; and 

(3) That the Republic of Costa Rica occupies this region since July, 
1904, mthout any other title than that of usurpation. 

I shall expound each of these important reasons separately:- — 

I. 

That the region of the Sixaola, in the triangle comprised by the mouth 
of the river of that name, the place called Cinocere and Punta Mona (which 
is the part that solel}' concerns me) lies \\"ithin the territory of the Republic 
of Panama, is a matter which you, Costa Rica, and the whole civilized 
world know and recognize. 

The almost centenarian boundary ciuestion between Colombia and Costa 
Rica was happily terminated by the arbitration decision, promulgated on 
the 11th of September, 1900, by the President of the French RepubUc. 
This decision, pursuant to the tenor of the treaty of arbitration concluded 
between the parties in San Jose de Costa Rica on the 25th of December, 
1880, and ratified by that of Paris of the 20th of Januarj^, 1886, and the 
one at Bogota on the 4th of November, 1896, is, according to the text 
thereof, . , . "a treaty concluded, perfect, obligator}'', and irrevocable be 
tween the high contracting parties which formally and expressly renounce 



230 

any and all claims of any kind against the arbitration decision, and oblige 
themselves to accept and fulfil it promptly, faithfully, and forever, pledging 
therefor the nations' honor." 

In these solemn expressions is contained the acceptance in advance of 
the decision on the part of Costa Rica and Colombia, — an acceptance which, 
for greater security and guarantee, has for guardian and custodian the 
national honor of the two Republics. 

The secession of Panama from the mother country transferred to the 
entity wWch arose from said movement, amongst others, the territorial 
rights acquired by the latter. Concerning this Ball says in his Treaty on 
International Law (5th edition, page 92) : — : 

"The right possessed within the territory that has separated itself, 
those acquired by treaties bearing on boundaries and by means of 
jm-isdictional cessions, the obligation contracted, concerning said 
territory, and the property wdthin its limits, which in itself has a local 
character, . . . are transferred to the new state." 

Therefore, the arbitration decision of the 11th of September, 1900, is the 
perfect title wdien Panama derives its right of ow^nership and dominion 
to the triangle already described to the North of the Sixaola. Who does 
not remember at once the short but precise terms of that pre-eminent au- 
thority? He said, — 

..." The frontier between the Republics of Colombia and Costa Rica 
shall be formed by the counterfort of the Cordillera (mountain chain) 
which starts at the Cabo Mona, on the Atlantic Ocean, and closes 
in to the North the valley of the Tarire River on the Sixaola River." 

Scarceh^ had the decision been communicated to the nations interested* 
therein, being published in the Official Gazette of the French RepubUc 
of September 15, 1900, both Costa Rica as w^ell as Colombia w^ere to have 
abandoned speedily and at once the jurisdiction which they formerly 
exercised over territory which by virtue of the decision had been adjudged 
to one or the other. Colombia should, therefore, have abandoned to Costa 
Rica the cocoa forests of Burica, Coto, and Pavon which the District of 
Sofia used to lease to private parties every year, and Costa Rica to Colombia 
the large territory to the East of the mountain chain indicated in said 
decision as the natural frontier towards the Northwest between the two 
countries. 

If that did not happen, that is to say if one or the other of the two nations 
remained knowingly on territory no longer belonging to it, with the toler- 



231 

aticfe or silent consent of the neighboring government, so was this doubt- 
lessly not due to the wrong belief that the former condition of matters — 
that is to say, preceding the decision of the arbitrator — still continued, 
but rather it was due to negligence only too often to be found Avith those 
who are sure of their rights. 

A decision affecting nations, like a judgment of a definite character 
on private interests, puts an end to all controversies. By the decision of 
the President of the French RepubUc the territory of the dispute was 
divided up, and each nation remained integrate, with the property, or rather 
with that part of the property, that now belongs to it. The situations pre- 
ceding the arbitration decision, any provisional boundaries that had been 
or might have been established, that which in the case of Colombia and 
Costa Rica has improperly and falsely been called the statu quo, all tliat 
evaporated, was wiped out, disappeared, when the arbitration decision was 
pronounced and promulgated. 

Gravely, indeed, err those who assume that a decision does not bring 
about any effects as long as the parties do not come to an agreement as 
to the manner in which the same is to be executed, or that it remains a 
dead letter until a new treaty gives it new life, in which treat}'^ the bases of 
its fulfilment are settled. If that were so, international arbitration would 
only remain an empty recourse. It then would suffice that the less favored 
nation in an arbitration decision should elude, by means of pretexts and 
subterfuges, the carrying out thereof, to prolong in this manner for an in- 
definite period the same condition of matters which by the recourse of 
tlie arbitration had been intended to be brought to an end. 

Moreover, for Colombia and Costa Rica the decision acquired by mutual 
agreement of the parties thecharacter of a " treaty concluded and perfect," 
and that means that the execution thereof is a foregone conclusion as 
soon as the decision is rendered and the parties have been notified thereof. 
The treaties are fulfilled from the moment in which they acquire legal ex- 
istence. 

There is still more to be said: Strictly speaking, a decision hke the one 
rendered by the President of the French Republic, does not require de- 
marcation of the frontier line by commissions appointed by the neighbor- 
ing States. Natural frontiers like the ones which separate them, as in this 
case according to the bounding effected by the arbitration decision, need 
not a material demarcation on the land itself. 

In his treaty. Codified International Law, Spanish edition of 1891, 
page , Fiore says as follows: — 



282 

"The conventional boundaries are those established according to 
lines of demarcation fixed by ti-eaties, distinguishing themselves by 
visible signs placed between the frontier of the state and those of 
the limitrophe states." 

These visible signs are usually rivers or mountains, because it is, in fact, 
the duty of arbitrators on boundary questions to consider the natural 
boundaries when tracing the actual ones of each State. 

The tracing of the decision pronmlgated on the 11th of September, 
1900, was fixed on the side of the Atlantic Ocean by signs of mountains, 
and therefore subject to that rule of Bluntschli which reads, — 

"When the countries are separated by a mountain range, it is ad- 
mitted, in case of doubt, that the frontier is formed by the crest or 
the dividing fine of the waters." 

Panama understood matters in the mamier here expounded from the 
very first moment of its separation from Colombia, and reassumed, there- 
fore, the boundaries indicated in the decision as the proper and definite 
ones of the new State. 

Decree 18 of the 16th of November, 1903, Official Gazette No. 2, of 
the 20th of November, 1903, issued by the Provisional Government, 
created the province of Bocas del Toro, and indicated for it as fron- 
tiers on the Northwest "the dividing line of this republic with that of 
Costa Rica, according to the arbitration decision of the President of the 
French Repubhc," and for the district of Bocas del Toro the territory 
which lies to the North of the Sixaola River up to Cabo Mona,Loma Bonita, 
and Rio de Occidente. 

By means of this important act of the Provisional Government of 
Panama there were adopted the boundaries of the arbitration decision, . 
and they were copied in the public right (law?) of the new State. Panama 
appreciated the decision according to its true value, that is to say as a 
just title will say perfect title of property over the region of the Sixaola 
as far as Punta Mona, and extended, therefore, over it its sovereign juris- 
diction. Therefore the governors and other authorities of Bocas del Toro 
were to exercise, and exercised in fact from then onward until the month 
of July, 1904, command and jurisdiction there. On the date last named 
Costa Rica started to occupy manu militari the said territory, and it thus 
failed to recognize the sovereignty of Panama. Nevertheless, the Decree 
of the Provisional Government which created the Province of Bocas del 
Toro is still in force as law of the republic. 



I 



233 

At that time the country had akeady been organized, and had been 
given a constitution, a faithful transcript of the permanent will of the 
nation, and also here was designated as belonging to Panama 

. . . "the territory, both insular and continental, which was ad- 
judicated to the Republic of Colombia by virtue of the arbitration 
decision promulgated on the 11th of September, 1900, by the president 
of the French Republic." 

In this manner the reign and jurisdiction of a country are extended as 
far as its boundaries reach, and thus the constitution has conveyed to the 
Republic of Panama command and jurisdiction of the region of the Sixa- 
ola, which is an integrant part of the national territory. 

Fiore states and aflirms that — 

"the territory, with all that it contains, must be considered as the 
base and limit of the reign and the real jurisdiction of each sovereign." 

From the point of view of its fundamental law, Panama is, therefore, 
in possession by right and fact, or, as the jurists say, de jure et de facto, of 
the triangle of national territory which reaches from the mouth of the 
Sixaola River as far as Cinocere, near Cuabre, and from there to the Cabo 
Mona. 

That fact that Costa Rica has occupied that region, and that this occu- 
pation has been tolerated and assented to contrary to the express text 
of the constitution, is a thing which it is not my business to examine. 
My object is to demonstrate that you are the masters with perfect title of 
the Sixaola, Gandocan, and Punta Mona, and that the constitution and 
the laws which you yourselves have given for youi own government have 
extended over that region the national reign and the national jurisdiction. 



II. 

In ciA-il law a title deed duly recorded is a f uU proof of possession. " In 
the law of nations," says Carlos Calvo, "the use in re carries with it always 
and in every case the use ad rem" (International Law, ed. of 1868, page 

). 

Panama, as mistress of Sixaola, covers with her sovereignty that ter- 
ritory, and the authorities of Bocas del Toro are those which are in charge 
of carrying into practice the attributes of sovereignty, to wit, the reign 
and jurisdiction. 



234 

Of two acts of actual jurisdiction exercised by authorities of Panama 
mthin the territory to which I refer, I possess two positive proofs. One 
of these acts is that of the port inspector of Bocas del Toro, and the other 
that of the treasury agent of the same province, 

In the archives of the public offices tliere must be evidence of many 
other analogous acts, because it is a fact not doubted by any one that 
the Prefect of Bocas del Toro governed the province in all its extension, 
from the time when it was created up to July, 1904. 

The same must be said of the Inspector of the Port. This official pos- 
sessed legal existence under the republic by virtue of Decree 17 of the 19th 
of November, 1903 {Official Gazette No. 3, issued by the Provisional Gov- 
ernment). It seems appropriate to copy here article 12 of the said De- 
cree, which reads as follows: — 

"Article 12. There shall be a national custom-liouse officer in every 
one of the cities of Panama, Colon, and Bocas del Toro, with jm'is- 
diction within the respective provinces, under whose charge there 
shall be the surveillance of national income and the maritime pohcing 
of the respective ports." 

The chief of the guard exercised the jurisdiction conferred here in the 
whole province of Bocas del Toro, when there arrived at this port, bound 
from the United States, the steamship "Orn," carrying particularly ma- 
terials for railroads destined for the region of Sixaola. After the authori- 
ties had been informed as to the nature of the cargo, Mr. Otto F. Dolder, 
my agent at Bocas del Toro, sent the following communication to the 
inspector of the port : — 

To the Chief of the Custom-house Guard, City: 

Please issue permission that the Norweigan steamer "Orn" under 
command of Captain Movinkel, from Baltimore, consigned to Otto 
F. Dolder, for the place of Gandocan, Sixaola, may weigh anchor. 
Bocas del Toro, 22nd July, 1904. 

Otto F. Dolder, 

p. Grabowcki. 

At the bottom of this request there appeared the folloAving decision: — 

"May weigh anchor. (Signed) The chief of the custom-house guard, 
C. Clement." 

In corroboration of the preceding, and in order to show that this "May 
weigh anchor" was conceded in fuU appreciation and knowledge of the 



235 

fact that Gandocaii is national territory, tlie following certificate should 
be read : — 

The undersigned, chief of the National Custom-house Guard, at 
Bocas del Toro, after examining the promemoria presented by Mr. 
0. F. Dolder to this office, certifies: 



I. 

That it is a fact that the office under his charge sent on board of 
the steamer "Orn" three officials for the purpose of being present 
at the unloading to be effected by said steamer in the port of Gandocan 
during the last days of the month of July of last year, and to record 
the loading of the same. 

II. 

That the names of the three officials and their rank in the office 
is as follows: Juliam E. Mier, sergeant of the guard; Rogelio Quintero, 
guard; and Manuel Antunez, guard. 

(Signed) C. Clement. 

The other act of actual jurisdiction to which I have referred was exe- 
cuted by the treasury agent of the province of Bocas del Toro, and con- 
sists in that the said official collected import duties or commercial taxes 
on the cargo of the "Orn," made up of railroad material, destined for 
Gandocan iu the district of Sixaola. The collection effected by the 
administration (treasury agency) amounted to $10,000 Colombian cur- 
rency, for which the office at Bocas del Toro has paid itself in excess, 
selling in public auction property belonging to the undertaking, particu- 
larly a gasoline launch called "Sixaola." 

Although I am of the opinion that the railroad material carried on 
board the "Orn" was not then, and is not now, subject to the payment 
of the commercial ckity, I have, nevertheless, cited the case as a positive 
example of actual possession wluch does not leave any room for uncer- 
tainty. 

The following certificate issued by the treasury agent at Bocas del 
Toro explains the matter more fully. It follows herewith : — 

The undersigned provincial treasury agent, pursuant to the pre- 
ceding promemoria and the documents on file in his office, certifies: 
Firstly. That it is a fact that in this office there was intended and 



236 

is pending a bill for writ of execution to collect from the American 
Banana Company the import duties on a cargo of raikoad material, 
which arrived in the steamer "Orn" at the end of July, nineteen hun- 
dred and foui'. 

Second. The articles imported in the steamer "Orn" were rails, 
cars, and utensils for tracks, subject at that time to the payment of 
import duties, because here the law 88 of nineteen hundred and four 
had not become operative. 

Third. From the files it does not become evident where the cargo 
of the "Orn" was discharged. 

Fourth. It is a fact that the import duties were liquidated in 
agreement with the declaration of Mr. 0. F. Bolder, as legal attorney 
of H. L. McConnell, in a promemoria of the 24th of July, nineteen hun- 
di'ed and four, which declared that per steamer "Orn" thirty-three 
thousand four hundred and thirty-six packages had arrived. In 
July of the said year the said duties amounted to ten thousand one 
hundred and forty-nine dollars and ninety cents. 

(At the present time the Republic of Panama loses because of the im- 
portations by way of Gandocan and the exportation of bananas a con- 
siderable amount of income, which otherwise — that is, by the reincorpo- 
ration of the said territory— would flow into the pubhc treasury. The 
amount that thus does not flow into the national treasui^^ anioimts to 
hundreds of thousands of dollars, owing to the indifference witli which 
up to the present time those important interests have been overlooked.) 

Fifth. It is true that for the payment of the sum referi'ed to my 
predecessor attached, stored and appraised three thousand four hun- 
dred and twenty-three rails. 

Sixth. The property of the American Banana Company attached, 
stored appraised and sold by the undersigned in the suit referred to. 
above, and pursuant to the rules laid down in articles 1079 of the ju- 
dicial code and 1085 of the law 105, was the gasoline launch called 
"Sixaola." 

Seventh. The sale of the gasoline launch "Sixaola" produced 
two thousand three hundred balboas. 

Eighth. On the 16th of May, nineteen hundred and six, there were 
adjudged in pubhc sale to Messrs. Surgeon and Company one hun- 
dred rails for seventy balboas, which amount was turned into the 
treasury of this office. On the 6th of June last, three thousand three 
hundred and twenty-three rails remaining to Mr. J. W. Barranco, 
for three thousand five hundred and fourteen balboas, five cents, 
a sum which has not been collected as yet, because it is made dependent 
upon some drafts drawn by Barranco on the United States. 



237 

Ninth. On this point no certificate can be issued as yet, because 
the final liquidation has not been as yet effected. 

Tenth. The only rails dehvered have been the one hundred, mak- 
ing up the lot sold to Surgeon and Company. Those adjudged to 
Barranco are stoi'ed until the drafts referred to above have been con- 
verted into cash. 

Given at Bocas del Toro on the tenth of July, nineteen hundred 
and six. 



III. 

Coming now to the third point, which is to the examination of the 
occupation on the part of Costa Rica since July, 1904, of the land where 
the plantations and works of the undertaking are, on the left bank of the 
Sixaola, I would state that this occupancy is due, according to all appear- 
ances, to a matter which is said to have existed between Coloml^ia and 
Costa Rica prior to the promulgation of the arbitration decision, under 
the name of "statu quo," or provisional frontier between the two coun- 
tries. 

Concerning this matter there has been prevalent a mistake which it 
is high time to clear up. Neither has the statu quo invoked by Costa 
Rica existed at any time as a formal agreement between her and Colom- 
bia, nor can it be maintained that it survives and subsists as provisional 
frontier after the promulgation of the arbitration decision which fixed 
and determined the definite boundary. 

In his work "Frontiers between Colombia and Costa Rica," Mr. Fran- 
cisco de P. Borda asserts that that which has been called jurisdictional 
statu quo of the two nations is nothing else but the sanctioning of the 
uti possidetis of 1810, defined in the treaty concluded in 1825 between 
Colombia and the United ProAances of Central America. 

Article VII. of this famous treaty reads as follows: — 

"Article 7. The Republic of Colombia and the United Provinces 
of Central America bind and oblige themselves formally to respect 
their frontiers as they are at the present time, reserving the privi- 
lege of effecting amicably through a special convention the demar- 
cation of the dividing line of either state." 

This statu quo or uti possidetis of 1810 threw the frontiers of Costa 
Rica not only beyond the Sixaola and the Tarire Valley, but deprived 
her also of a part of the coast on the Caribbean Sea. 



238 

Si'ice tliiit time there has been no other treaty. The work cited states 
so clearly in the following paragraph: — 

"Since 1825 up to the present time, if we except the arbitration 
treaty, there has not been concluded definitely any treaty, pact, or 
agreement with any of the republics of Central America. The treaties 
signed by the ministers of Colombia and Costa Rica have been dis- 
allowed by the respective congresses. If any innovation had been 
made in the statu quo before 1884, during the constitution of eighteen 
sixty-three, without the assent of the congress, it would be essentially 
void." 

In the treaty of arbitration concluded December, 1880, in San Jose 
by the Colombian plenipotentiary Jose Maria Quijano Otero and the 
minister of Costa Rica, Jose Maria Castro, the following can be read in 
Article VII.:— 

... "is agreed and here formally stipulated that the question of boun- 
daries and the designation of a dividing line between the adjoining 
territories of Colombia and Costa Rica shall never be decided by 
any other means except the civilized and humanitarian means of 
arbitration, the statu quo agreed on being preserved in the mean- 
while." 

Referring to this unexpected revelation of the existence of a secret 
agreement concerning the stntii quo, Mr. Borda says that such a thing 
done without the approval of the Congress is essentially void. One really 
cannot know what can be the statu quo agreed on if it is not that of 1825 
or the uti possidetis of 1810. 

It is certain that in the diplomatic archives of Colombia there appears 
a note issued from the Secretary of Foreign Relations, dated the 20th of 
April, 1880, which says: — 

" For the effect of the statu quo, according to which both republics 
have agreed not to change it, as long as the arbitration decision has 
not taken place, my goverment sustains and protests that the boun- 
dary of the two republics, during the time that their questions on 
boundaries remain pending, are the following : — 

" 'On the side of the Atlantic, the principal bed of the Culebras River, 
to its source, following a line over the Cruces mountain crest as far 
as the mouth of the Golfito River in the Golfo Dulce in the Pacific. 
This government considers any act of jurisdiction on the part of 
Costa Rica on this side of these boundaries as an act of usurpation. , . , 
(Signed) Luis Castro Rico." 



239 

Timnediately the Costa Rican minister replied to the note of the Co- 
lombian minister, indicating that^ which Costa Rica considered as the 
line of the statu quo. I quote herewith the pertinent part of the said 
reply on the 10th of June, 1880:— 

" I cannot admit that the occupation of Bocas'del Toro effected by 
Colombia and tolerated by Central America can have altered what 
in legal language should be called 'the state of things.' My gov- 
ernment maintains and protests — not by facts, but by reasons of 
justice which are incontestible — that the line of the stoiw quo is 
that which starts from Punta Biu'ica, runs straight to Escudo de 
Veraguas, and that any act of jiu-isdiction exercised by Colombia 
this side of -those boundaries must be considered as an act of usurpa- 
tion. . . . (Signed) Jose Maria Castro." 

Tt can easily be understood, in view of these differing opinions which 
were never brought to a voluntary agreement, that between Colombia and 
Costa Rica there had never been any real statu quo except that of 1825, 
that the line indicated by the Colombian secretary, Luis Carlos Rico, in 
his note of the 20th of April, 1880, as it had not been accepted by Costa 
Rica, obliged neither this country nor Colombia, even if we concede, and 
by doing so we concede a great deal, that an agreement of this kind were 
at all valid, and that, therefore, any occupation on the part of Costa Rica 
of territory east of the Hne of the idi possidetis of 1810 has necessarily 
had the character of invasion, and any jmisdiction which in virtue thereof 
it may. have exercised over the said territory has been usurped. 

The line, which by the by is indefinite, indicated l^y Minister Rico as 
provisional boundary between Colombia and Costa Rica, goes along the 
principal river-bed of the Culebra River (also called "Doraces"), which, 
according to the official map of Manuel Ponce de Leon, 1864, which must 
have been the one which served as a guide for the Colombian chancellery, 
flows into the ocean many miles north of the Cabo Mona, leaving, there- 
fore, on this side the region of Gandocan and the entire valley of the 
Sixaola. In spite of all this, and in case you should not have fixed your 
attention thereon, I would hke you to remember that, according to the 
terms of the note, that line was to subsist only while the arbitration decision 
had not heen brought about. 

This arbitration decision which was to have been rendered by His Majesty 
the King of Spain, and which, as the terms stipulated for it had expired, 
and as a new arbitration treaty had been made between Colombia and 
Costa Rica on the 4th of November, 1896, which fell to the President of 



240 

the French Republic, Einilc Loubet, to reuder, was finally promulgated 
on the 11th of September, 19U0. 

The arbitration decision was comnumicated to the interested parties on 
the 15th of September of the same year, so that de facto and in virtue 
thereof that capricious and arbitrary statu quo ceased \vhicli had been 
fixed by Mr. Rico and not accepted by Minister Castro. Since that time 
the definite frontier took by right the place of any other line or provisional 
frontier. 

It only remained to take material possession of the territory adjudged 
by the decision, an intention conuuunicated by Colombia to Costa Rica 
through its envoy extraordinary and minister plenipotentiary to the gov- 
ermnents of Mexico and Central America, Mr. Lorenzo Marroquin. 

In a nicmoranduni addressed by this diplomat to Mr. Justo R. Facio, 
Minister of Foreign Relations of Costa Rica, on the 27th of February, 1901, 
the following appears : — 

" Moreover, the Colombian govermiient believes to be under the 
obligation to look after the territories which that decision, meaning 
the French arbitration decision, recognizes as a part of its domain, 
establishing custom-houses and guards, founding militar}^ and agri- 
cultural colonies, starting the service of missions, providing for the 
political and judicial administration, and using such means as may 
.bring about the development of welfare, growth, and progress of the 
jxirts demarcated. Thus leaving aside other reasons with which I 
do not wisli to fatigue your excellency, the government of Colombia 
will send about the middle of September of the present year a com- 
mission to take possession of the territory which has been adjudged (o 
it, according to the decision, and to deliver unto Costa Rica that 
which belongs to the latter. The natural boundaries indicated by 
the arbitrator render this act easy and feasible." 

Although the taking possession announced for the midtile of September, 
1901, could not take ]3lace because of the war that broke out at that time 
in Colombia, the notification transmitted to Costa Rica remained standing, 
to become operative at any time. 

Conclusion. 

On the 14th of September, 1904, the Secretary of Public Works rendered 
the following resolution, number 33, reading literally: — 

"Therefore the government resolves: — 

" The Secretary of State and Foreign Relations is to be requested 



241 

to address a request to the government of Costa Rica, that provisorily 
and until the exact boundaries are settled between the two republics 
no obstacle be laid in the way of Mr. H. L. McConnell by the authori- 
ties of the government of Costa Rica, in the work which he is under- 
taking in the place called Gandocan. Record and notify. For the 
President of the Republic, the Secretary of Pubhc Works, Manuel 
Quint ero V." 

This recommendation, in perfect conformity with the duty of legal pro- 
tection falling to the government, was, however, not duly carried out by 
the Secretary of Foreign Relations, because there were pending at that 
time in this office important negotiations with the neighboring Republic of 
Costa Rica, and, although it cannot be understood, in what form these nego- 
tiations have been al^le to justify the non-exercise of the sovereignty of 
Panama within the national territory, it is a fact that during the time 
required for the discussions as to the concluding of the treaty known under 
the name of the Guardia-Pacheco treaty, the Executive of Panama remained 
in a condition of absolute, although not very well founded, abstention as 
regards the Sixaola. 

Fortunately, the apparent obstacle accruing from these negotiations dis- 
appeared when they came to an end, culminating in a treaty not yet pub- 
lished, but known by all, which, as far as I know, is to be submitted to 
your consideration in the present session of the National Assembly. 

As long as the Guardia-Pacheco treat}'' has not been ratified by the 
respective congresses, it will not have any legal existence. It can, there- 
fore, only poorly be used as a pretext against the appropriateness of 
Panama extending its immediate jurisdiction over the territory adjudi- 
cated in the arbitration decision. For the more thorough understanding of 
the matter you should know, however, that the region situated to tlie 
North of the Sixaola River will remain a part of Panama, even after the 
treaty in question is approved, whose frontier line leaves within the na- 
tional territory the zone comprised between Punta Mona and (^inocere, 
near Cuabre, on the left bank of the Sixaola down stream to the mouth of 
this river. 

In effect the Guardia-Pacheco treaty says literally, as follows: — 

" The frontier between the Republics of Panama and Costa Rica 
shall be formed by a line which, starting from Punta Mona on the 
Atlantic Ocean, shall follow in a southwesterly direction until it strikes 
the Sixaola River below Cuabre. From this point the dividing line 
shall follow on the left bank of the Sixaola River up to the place 
where it joins the Yurquin, or Zhorquin, River." . , . 



242 

This demarcation, as it does, leaves as property of the Republic of 
Panama the valley of the Sixaola and the port of Gandocan as far as 
Punta Mona; and the question is now, Wliy should its usufruct be left 
for a longer time still to Costa Rica? 

It should not be forgotten that the Guardia-Pacheco treaty is await- 
ing ratification, not only in the National Assembly of Panama, but also 
in that of Costa Rica; that the latter Congress can only be convoked 
some time in May, 1907; and even if, expecting the best result in that 
matter, it is convoked in that month, three, four, and even five years 
more will be lost in the appointment of the boundary commissions and 
in the demarcating on the land of the frontier line, — a time which, nec- 
essarily, must finally destroy my hope. 

Would it be j ust to expect me to wait that long ? 

The Repubhc of Panama, a,s regards its territory of the Sixaola, is con- 
fronted by the same duty as the owner of a thing of which he has been 
deprived; that is, the duty of recovering it. It is not well that the atti- 
tude of indifference of the nation concerning its territorial rights should 
still be prolonged. What will foreign nations think of your carelessness? 

The Department of State of the United States has taken steps in this 
matter, to assure for American interests rooted in the north of the Sixaola 
the legal protection which is due to them. For this purpose it has sent 
to its diplomatic representatives in Panama and San Jose de Costa Rica 
instructions tending to obtain that end. 

On the 25th of January of this year it sent to the American Legation 
in this city, for its transmission to the office of the Secretary of Foreign 
Relations, the following note: — 

" This government . . . reserves for itself in favor of any American 
prejudiced against Costa Rica or Panama all the rights as regards- 
the territory [of the Sixaola] for the violation of which the legiti- 
mate sovereign is responsible." 

The legitimate sovereign of the territory where the American interests 
are situated which are discussed here is the Republic of Panama, whose 
authorities have the duty to watch over their protection. This republic 
will therefore be responsible for the losses caused by its negligence in 
not extending its jurisdiction over the entire national territory. 

In the letter of instructions, dated Washington, the 16th of April last, 
Mr. Ehhu Root, Secretary of State, is more explicit. He writes as fol- 
lows to Ambassador Charles M, Magoon:— 



243 

"Considering the actual relations of Panama to the territory in 
question [the Sixaola], it appears, that this republic has consented that 
Costa Rica continue as sovereign de facto until the ratification of 
the treat3^ [He refers to the Guardia-Pacheco treaty.] ... As such, 
and while Costa Rica has the possession de facto, it will possess the 
attributes which accompany such possession, such as collecting im- 
port duties, etc., in Gandocan. 

" But the higher attributes of sovereignty will always rest with the 
legitimate owner, a reason for which it would be proper that Panama 
see to it that the rights and titles acquired in the national imappropriated 
lands within the area of the territory of the Sixaola be not preju- 
diced by Costa Rica, which only exercises there an accidental and 
precarious jurisdiction. Panama can reach this result by means of 
discreet representations made to Costa Rica, or protests or any other 
mode which is not force." 



There is no doul^t but that the situation called forth by the negligence 
of the Republic of Panama concerning the region of the Sixaola has few 
examples in the diplomatic annals of the world. This country — master 
of this territory in virtue of the perfect title of .ownership, — to wit, the 
arbitration decision, and by mandate of its constitution and laws, — aban- 
dons, nevertheless, to" the Republic of Costa Rica the possession de facto, 
or, in other words, the usufruct of that region, and does not realize that 
its tolerance or tacit consent does not only bring forth a situation M'hich 
is exceedingly abnormal, but does also infringe and violate its internal 
public right. 

The United States recognized for Costa Rica the possession de facto 
which she maintains in the region of the Sixaola, founded on the consent 
of the Executive of Panama; but, inasmuch as such consent is contrary 
to the constitution and the laws of the country, or, in other words, since 
the government cannot accede to anything which may in any shape or 
form be contrary to the written law, it must necessarily be conceded that 
the tacit consent of Panama to the fact that Costa Rica continue in the 
possession de facto to that part of the national territory which lies to the 
North of the Sixaola River is a consent which is void, and that the occu- 
pation founded therein is usiu-pation. 

If the United States, for which the Republic of Panama only has the 
possession de jure in the territory of the Sixaola, is of the opinion that 
the latter entity as master has to look out that American interests estab- 
lished there, should not suffer any damage, what will they think v\'hen they 
know that the possession de facto of Costa Rica rests on the frail pedestal 



244 

of an illegal consent, and that, if Panama does not occupy that territory, 
it is due to mere negligence? 

Now is the time to act. Remember that, in view of the juridic truth 
of matters, Costa Rica cannot, without becoming an unpleasant and threat- 
ening neighbor, oppose any obstacles to your occupancy beyond the 
Sixaola. On the contrary, if international amity is not a vain expression, 
that republic should give proof of its friendship towards the Isthmus, 
abandoning willingly to Panama that which belongs to Panama. 

Mr. President, Honorable Deputies. 

HERBERT L. McCONNELL. 
October 16, 1906. 



[Daily Star and Herald, November 14, 1906.] 
Open Letter. 

THE SIXOLA QUESTION. 
To THE Editor: 

Sir, — Since there has been considerable discussion through the local 
press regarding my laiemorial to the National Assembly, in w^hich it is 
asked that the government repossess itself of that portion of the national 
territory situated between Monkey Point and the Sixola River (now 
held by Costa Rica), for the protection of fruit interests situated there, 
I beg to quote from certain documents in order tliat tlie situation may 
be better understood. 

On April 16, 1906, Secretary Root wrote to the American legation at 
Panama, and (with the necessary changes) to the legation at San Jose, 
Costa Rica, as follows : — 

(A copy of this communication is found on page 163.) 

A supplementary letter was also sent to the legation at Panama, inquir- 
ing in substance why the Panama Government, after collecting duties on 
goods landed at Gadocan, between Monkey Point and the Sixola River, 
failed to protect the owner in their use. On April 27th, 1906, the legation 
at Panama, cabled the State Department at Washington as follows:— 



245 

"In conference with the President, Guardia, and Obaldia, reference to 
jurisdiction over territory' north Sixola was made. Guardia said Panama 
conceded to Costa Rica the right to exercise complete jurisdiction, an^ 
Panama has no intention to withdraw said right until final action upon 
pending boundary' treaty. He admitted that Panama had collected tariff 
duty on railroad material brought by American Banana Company from 
the United States to Gadocan, thence to Bocas del Toro, but denied that 
they had collected or attempted to collect duty on any part of the cargo 
not landed at Bocas del Toro. WiH take up American Banana Company 
affair.s as you directed by your letter of April 16th, received yester- 
day." 

The legation later sent a letter report to Washington, a portion of which 
was confidential. My attorney, writing from \^'asliington concerning that 
portion of this report wliich was made to him, said in part: "Panama 
has stated positiveh' to Governor Magoon that she does not claim any 
sovereignty wliatever, either de facto or de jure, in the Sixola valley, and 
considers the Loubet award faulty in many particulars, and in case of 
attack ou the part of Costa Rica likely to be set aside. Her President and 
Minister of T'oreign Affairs have taken the posirion that they will not do 
anything to assert their claims to jurisdiction, or make any representation 
in your behalf to Costa Rica. As we have formally ad\'ised you, it would 
be of great ad-\'antage to us and the Department of State acting in your 
interests if in dealing with Costa Rica they could nominally be asserting 
the claiins of Panama. Panama, as you see, refuses to give us tliis ad- 
vantage." 

As to the statement emlDodied in the legation's calale despatch of April 
26th (this despatch was signed "Magoon," but Mr. Sands, now American 
charge d'affaires, tells me that it was sent by him), to the effect that Panama 
has not collected, or attempted to collect, the duties on that portion of 
the Orn's cargo landed at Ciadocan, I have to state that my memorial 
contains a complete copy of the statement of the Collector of the Port of 
Bocas del Toro that duties have been collected on the entire cargo, a por- 
tion of which was landed at Gadocan. 

It is proper to state that during a conference on October 4th with the 
President and Mr. Ricardo Arias, Secretaiy of Foreign Relations, Mr. 
Arias, who, however, was not in office during the period that this cor- 
respondence took place, stated that Secretarj' Root's cable and letter de- 
spatches of March the 19th, and April the 16th, respectively, had never 
been formally placed before the Panama Government, he not ha^^ing seen 



246 

tliem previously. Mr. Arias further stated that the legation cable and 
letter reports do not correctly represent the views of his government re- 
garding the Loubet award, and the sovereignty and jurisdiction of the 
Sixola-Gadocan region. 

He said that Panama's views coincide exactly with Secretary Root's as 
expressed in his letter despatch of April the 16th . . . [That is, that Panama 
is the sovereign, and has the right at any time to divest Costa Rica of 
jurisdiction.] It is apparent, therefore, that the President did not give 
expression to or sanction the statements contained in the legation's 
reports. 

Mr. Sands tells me that Secretary Root's despatches of March the 19th 
(cable) and April the 16tli (letter) never reached the legation. 

I am just in receipt of a letter from my New York attorneys, dated 
October 16th, concerning these matters, reading in part as follows: — 

"The present situation in Cuba seems to us to furnish a parallel. The 
administration intervened there because they were requested so to do by 
the President of the Cuban Republic. ... In the case of Panama we think 
the obligation of the United States to interfere is as strong as it was in 
Cuba, but the Panama Government has not requested any assistance, and 
has not even intimated its desire to have Costa Rica withdraw from the 
Sixola territory." 

The attorne5^s suggest, especially in view of the fact that there is no 
direct diplomatic communication between Panama and Costa Rica, that 
Panama might, through its representative at Washington, request the 
United States to intervene. As all are aware that the United States 
(Panama's friend), through treaty agreement guarantees the indepen- 
dence of the Repubhc of Panama, and since the United States, through 
Secretary Root, has recognized the Sixola-Gadocan territory as a part of 
the Repubhc of Panama, what is more simple and proper than that Panama 
should ask the United States to require Costa Rica to withdraw from 
that territory? 

The United States could not, were it disposed (and there is no reason 
to suppose that it is), in view of its treaty obligations and Panama's reli- 
ance on that agreement (it having wholly disarmed), decUne to comply 
with such a request. Panama, because of its treaty with the United 
States, is just as much stronger, for purposes of defence against seizure 
of its territory, than the latter government as its individual strength 



24t 

amounts to For such purposes it has the combined strength of the two 
governments. 

H. L. McCoxxELL. 

P.S. — Costa Rica dechned to allow the .\nierican Banana Company to 
operate for the reason that its courts had, dm'ing the present j^ear, decreed 
title to the lands to the United Fruit Company, stating that it was its 
duty to protect that compan5''s interests. The only way, therefore, that 
Panama can protect the American rights acquired under its laws is to 
repossess itself of the territory. Jly attorney, in writing fm-ther regarding 
the American legation's letter report to Washington, said, "Panama has 
stated to Governor Magoon that in case the treaties are ratified she -nill 
not consider the decision of the Costa-Rican com-ts binding upon her, 
but that she would natm'aU}- be much influenced by such a decision, being 
the decision of a country which she recognizes as a sovereigntj'." 



248 



REPLY TO McCONNELL'S MEMORIAL TO THE NATIONAL 
ASSEMBLY OF PANAIVM.. 

NOTES ON A PROMEMORIA. 

Mr. Herbert L. McCoiinell has addressed to the National Assembly a 
memorial in which, after submitting sundry reasons and explaining the 
damages that have been caused to him by the occupation on the part of 
Costa Rica of the territory beyond the Sixaola River, he finally demands 
of the Assembly the issuing of a law, of which petitioner also submits a 
draft, by virtue of Vt'liich the Executive is to be ordered to proceed imme- 
diately to take possession of certain tracts situated in that region, author- 
izing him at the same time to construct a key (quay) in the anchoring 
ground of Gandocan, so called. Passing over tlie inconvenience that there 
exists if a private person presents drafts of laws to the Assembly, we will 
make some reflections on the promemoria submitted by the said Mr. 
McConnell, and based on some theories and assertions that must not go 
unchallenged unless there is danger lest the public should get wrong im- 
pressions and form unfavorable conceptions concerning certain official 
facts and acts, some of which emanated from the chancellery of the Isthmus, 
and which are discussed in the said promemoria. 

There are two scientific methods by virtue of which the truth can be 
ascertained; viz., analysis and synthesis. Both shall be resorted to in 
the present reply, and we shall begin by giving a synthesis, or considera- 
tion as a whole, of the petition of Mr. McConnell. 

This gentleman wants the Republic of Panama to take possession of a 
tract which since time immemorial has been occupied de facto by Costa 
Rica, and he bases himself on the fact that Panama, according to the 
decision handed down in September, 1900, by the President of the French 
Republic, is a de jure owner of the said territory. 

It is a well-known fact that special circumstances of mutual convenience 
for the people of Panama, as well as of Costa Rica, have led to the con- 
cluding ad referendum of the Guardia-Pacheco boundary treaty, at the 
present time submitted to the National Assembly. At the very first 
glance the absolute inconvenience of the proceeding suggested by Mr. 
McConnell becomes evident, because that proceeding would break the 



^49 

good harmony that has at all times existed between Panama and Costa 
Rica. One need not be especially well versed in the science of politics 
and in diplomatic com'tesy to see at once how wrong it would be to effect 
such an occupation, which, if based on the Loubet decision, is absurd, 
and, if based on the Guardia-Pacheco treaty, would mean to force im- 
properly into action a serious govermnent. 

I say force into action, because this treaty will be approved by the 
present legislature, in all probability, because it satisfies the legitimate 
aspirations of the contracting parties, and it also will be approved in a 
very short time by Costa Rica, where three days sufhce for convoking the 
Congress, and where it is intended to convoke special sessions for this 
particular object. 

We will now analyze the matter, and examine the three reasons on 
which the petitioner bases himself: — 

(1) That the region referred to is an integrant part of the territory of 
the Republic of Panama; 

(2) That the Panama authorities have exercised over it jurisdiction 
without protest on the part of Costa Rica; and 

(3) That the Republic of Costa Rica occupied this region only since 
July, 1904, without any other title than that of usurpation. 



I. 

The first of said reasons is, — 

"The region to which I am referring is an integrant part of the Republic 
of Panama." 

Above all, it is necessary to distinguish from which point of view Panama 
should be considered in order to see whetlaer the region of Gandocan is an 
integrant part of its territory. Let us see whether it means the nation 
such as it is de facto or such as it ought to be according to right; the 
nation in potentia or the nation in ado; tlie juridical entity or the real 
entity. 

Therefore, if we establish beforehand the difference that exists between 
right and fact, we shall reach the following conclusions: — 

Considering the Republic of Panama as a political and geographical 
entity, the limits of which, according to the juridical title contained in 
the Loubet decision, reach beyond the Sixaola River, it can be affirmed 
that the region of Gandocan is an integrant part of its territory. 



250 

But if it is considered, that if the republic is considered, such as it exists 
at tlic present tmie, — that is, with respect to tlie extent of its sovereignty 
and jurisdiction, — if as Repubhc of Panama we designate that territory 
where it has estabhslied authorities that bring about tire fulfilment of its 
laws, that collect taxes, and, in short, aU the acts comprised within the 
exercise of imperium on the part of the sovereign, then the region of Gan- 
docan is not an integi-ant part of Panama. 

Therefore, the following theory estabUshed by Mr. McConnell with 
reference to the preceding is not admissible: — 

"Those, therefore, are gravely mistaken that assume that an arbitration 
decision does not produce effects as long as the parties do not come to an 
agreement as to the manner of carrying it into effect, or that it remains 
a dead letter as long as a new agreement does not bestow life upon it, in 
which treaty the basis for its fulfilment are settled. . . . Moreover, as far 
as Colombia and Costa Rica are concerned, the decision in arbitration 
acquired, by mutual agreement of the parties, the character of a perfect 
and accomplished matter. That means that as soon as the decision was 
promulgated and the parties notified of the same it was ready for execu- 
tion." 

In order to refute the above, it is only necessary to read the resolutions 
of Colombia and Panama * of which I speak later on, and in which become 
manifest the opinions which the Chancellors of Colombia and Panama 
have uttered on the subject. 

On the other hand, it is perfectly logical and natural to sustain that 
a territory in which a nation has exercised for immemorial time the 
imperimn and sovereignty does not become de facto an integrant part of 
another State by the mere promulgation of an arbitration decision in a 
boundary question. It is necessary that after the decision the boundary 
should be materially marked, except, of coiu-se, the arcifinious territories. 
It is fm'ther necessary that, after marking the frontier lines, the transfer 
of the jurisdiction should take place in the proper way and with the for- 
malities suitable thereto; that is, of the jurisdiction which used to be exer- 
cised by the losing State; further, that, after this has taken place, the 
acts and proceeding should take effect which organize the administration 
of the public property, subject to the laws that are to obtain in the region 
thus transferred. 

* On the suspension of a contract made by R. Roman Romero, for the construction of a railroad 
between Gandocan and the right bank of the Sixaola; and on the imposing of a fine on Mr. Dolder because 
of his having talcen a Syrian from Gandocan to Bocas del Toro. 



251 

We may therefore agree, basing on what has been said above, that, as 
regards the first reason adduced by Mr. McConnell, it is necessary — to 
use a magnificent expression of Santiago Perez — to look at facts as facts, 
and to look for the vindication of right through diplomatic proceedings, 
retaining in the mean while the circumspection, in order that the same 
may also be retained in our behalf which is proper and customary be- 
tween independent, adjoining, and, moreover, friendly nations. 



II. 

The second reason is, — 

"That over it [the said territory] the authorities of Panama have exer- 
cised jurisdiction without any protest on the part of Costa Rica." 

To prove this assertion, Mr. McConnell cites two acts of real jurisdic- 
tion exercised by authorities of Panama, as he says. These acts were: 
firstly, "a permission to weigh anchor given by the Inspector of the Port 
of Bocas del Toro to the S.S. Orn consigned to Gandocan, and on board 
of Avhich the said Inspector put three men of the coast guard in order 
that they be present at the unloading which was to take place at the 
said place; the second was the collection effected by the Provincial Tax 
Collector, also of Bocas del Toro, of the import duties for some materials 
for railroads which the said S.S. Orn carried." 

Admitting the truth of these assertions of which the office of the Secre- 
tary of Foreign Relations has no official knowledge,* we cannot but agree 
that, if Costa Rica has not protested as yet in writing to our government, 
it is only because the former government is convinced that these acts 
are not emanating from the Isthmus Chancellery, but are merely acts 
of some treasury officials who were not aware of the fact that the tacit 
agreement called stat^i quo entitled Costa Rica to occupy the territory 
beyond tlie Sixaola, while the definite demarcation of the boundary sepa- 
rating the two countries had as yet not taken place. 

In fact, our Chancellery has recognized the proAdsory jurisdiction of 
Costa Rica in that territory by means of two acts which refute completely 
the two that Ave have seen. First, the decision No. 28 of August 2nd, 
1904, in which Mr. Adolfo Bolder was condemned in a fine of $200, under 
the provision of Law 6 and Decree 35 of the self-same year, for having 
taken to Bocas del Toro a Syrian who came from Gandocan, with whom 

* This office has demanded a report on these matters without having so far been able to get it. 



252 

the authorities of Bocas del Toro liad nothing whatever to do while he 
was there. In its pertinent part this decision reads as follows: — 

"Although by the Arbitration Decision handed down by the President 
of the French Republic Gandocan forms a part of the Territory of Panama, 
this decision has not been carried into effect as yet, and in the meanwhile 
(and while this is not carried into effect) the Government of this Republic 
does not exercise jurisdiction in that place, because it is situated mthin 
the boundaries, the dispute over which gave rise to the arl^itration pro- 
ceedings and because the statu quo agreed on thus demands it. There- 
fore the Government of Costa Rica is the present possessor of the place 
referred to, just as the Republic of Panama is the actual possessor of the 
Costa-Rican territory on the Pacific, — that is, of a certain part there. The 
carrying out of the Decision of Arbitration will give to each sovereign 
the possession of the land that belongs to him, and then the statu quo 
will have come to an end. But, as long as this does not take place, Gan- 
docan will remain under the jurisdictional action of Costa Rica, and since 
it was there that the Syrian, whose name was George, was shipped, with 
his destination being a territory under Panama's jurisdiction, it is evi- 
dent that Dolder and Co. infringed the law which prohibits the Cliinese, 
Syrian and Turkish immigration, and likewise the Decree which regulated 
the matter, wherefore the Decision under examination (that of the Alcalde 
of Bocas del Toro) is correct and is herewith declared to be so." This 
declaration was signed by the then Secretary- of Foreign Relations, Sec- 
retary of State Tomas Arias. 

The second act was that where the Foreign Office abstained from com- 
plying with the request of the Secretary of Pubhc Works in September, 
1904, to request the Costa-Rican Government not to interpose any ob- 
stacles to the work that McConnell had started in Gandocan. 

This international policy is entirely conformable with precedents from 
the time when Colombia was sovereign of the territory of Panama, the 
most notable of which is the suspension of the contract made by Richard 
Roman Romero in April, 1903, with the government of the Department 
of Panama. 

Said Mr. Romero proposed a contract, afterwards entered into, on the 
construction of a steam tramway between the anchoring ground of Gan- 
docan and the right bank of the Sixaola. Since on the official maps of 
those regions there appeared no such anchoring ground, the government 
believed that this was East of said river, and had therefore no idea tliat 
an international difficultv could arise as an obstacle for tlie contract. 



253 

But when the contractor submitted the plan and profile of the work, 
and stated that the raih'oad or steam tramway connected the bay of 
Gandocan with the left bank of the Sixaola, it at once took steps to cancel 
the contract as considering it in violation of that which Mr. McConnell 
states neA'-er existed, and which is commonly called statu quo. 

The decision of the government, Vvhich entirely agreed witli instruc- 
tions received from Bogota, reads textuaUy as follows: — 

"Office of Governor of the Department; Secretary of the Treasury; ' 
Sh;ction 3, Number 78, Panama, September 9th, 1903. 

"Whereas: On April 2nd of the current year upon petition of Mr. Rich- 
ard Roman Romero, this office entered into a contract with the said gen- 
tleman, for the construction of a steam tramway which was to connect 
the small bay of Gandocan with the right bank of the Sixaola River. 
. . . Subsequently on the 1st of May Mr. Roman Romero transferred said 
contract to McConnell by deed Number 117 and -ndth the consent of the 
undersigned. In due season Mr. McConnell presented plan and tracing 
required by clause 2 of the said contract, when examining the same it 
was seen at the first glance that the proposing party had made a mistake, 
undoubtedly involuntary, because the tracks for the railway run from the 
left bank of the Sixaola river to the Atlantic, to a small bay or inlet which 
does not appear on the official maps of that region, a mistake for which 
the concessionary cannot be made responsible, as it goes against his own 
interests,- nor the Department either, for the same reason, and moreover 
because at the time when this contract was entered into it had no knowl- 
edge of the existence and less still of the place where this bay is situated, 
called Gandocan, since if that information had reached the government 
before it would not have entered into the said contract. 

"Now therefore it is resolved 

"1. . . . 

"2. As long as the boundaries are not fixed definitely with the Republic 
of Costa Rica and as long as Colombia cannot enter upon the possession 
of the land that is coming to it according to the Loubet Decision, the terms 
of the said contract are suspended and the contracting parties shall not 
therefore incm- any responsibility, since it has been shown that there was 
no bad faith on tlie part of either. 

"Record, notify and publish. 

"For the Governor. 

" The Secretary of the Government, 

Julio Guerra." 



254 

One must further remember the character of the two jurisdictional 
acts of which Mr. McConnell speaks and the circumstances that surrounded 
them, in order to become convinced that the second assertion of which 
we treated cannot be admitted as a reason in the form in which Mr. Mc- 
Connell presents it, who plainlj' and clearly asserts that Costa Rica has 
not protested against those acts. There is no question that no wiitten 
protest was entered, but it is just as certain that there was no necessity 
for that. 

The first of these acts, indeed, as we have seen, was the permission to 
weigh anchor given to the "Orn," on board of whicli guards were put to 
see to the unloading of the cargo in Gandocan. 

What happened as a consequence of this act? The reoccupation of 
the said place by Costa Rica, and that is where the protest was made 
(that is, the protest). 

As regards the second act, — that is to say, the collection of duties for 
import on railroad materials carried by the "Orn," some of which 
were discharged in Bocas del Toro, — the Costa-Rican Government had 
nothing to do with it. It did not even need to consider itself as having 
been informed. The only government that could protest against that 
act was that to which the person injured by said act belonged in case — 
a case not come about yet nor ever likely to come about, — where justice 
should l^e denied to said person. 



in. 

The third reason is,— 

That the Republic of Costa Rica occupies this region since July, 1904, 
by way of usurpation. 

Concerning this Mr. .McConnell says, "I would state that this occupa- 
tion is due, to all ai^pearances, to a thing which is said to have existed be- 
tween Colombia and Costa Rica before the pronmlgation of the deci- 
sion, under name of statu quo or provisional frontier between the two 
countries"; and he then proceeds that the statu quo has never existed 
as a formal agreement between Colombia and Costa Rica. 

In view of the facts there can be no earthly doubt but that there did 
exist a silent agreement between the two nations, in virtue of wliich Co- 
lombia exercised since time immemorial, and also after the Loubet arbi- 
tration decision, sovereignty over the peninsula of Burrica and a large 



part of the Golfo Dulce, and that Costa Rica has occupied the western 
part of the Sixaola River. 

Article 7 of the Gual-]\IoHna treaty, cited by Mr. llcConnell, proves 
that the state of things* in 1825 was equal to the state of possession! 
in 1810 (different from what is kno\NTi imder the name of de idi possidetis 
of 1810), for neither New Granada nor Colombia has ever exercised real 
sovereigntj' bej-ond the Sixaola. 

In the Historical and Geogi-apliical Atlas compiled by General of Engi- 
neers Augustin Codazzi and Mr. j\Ianuel M. Paz there appears the line 
of the uti possidetis in agreement ■nith the acts of the Spanish Govern- 
ment; but in the map of Colombia of 1824 this line of the frontier with 
Costa Rica is only advanced as far as the Sixaola in the North and the 
Golfito in the South. 

Since the epoch of independence up to now this hne has therefore been 
considered as the pro\'isional hne of the boimdaries, because only in the 
regions which it di\'ides each of the two countries has exercised real sover- 
eignty, this proAisional occupancy, which took place ■^dth mutual consent, 
being that wliich is called statu quo. 

The opinions of the foremost geographers and statisticians of Colombia 
are conformable as regards tliis detaU. 

In Apiil, 1880,± the Colombian Chancellery declared that it would only 
consider as acts of usurpation the jurisdictional acts which Costa Rica 
would exercise on the eastern side of the principal river-bed of the Culebras 
River in the Atlantic and hitherward of the Boca del Golfito in the Pacific. 

With reference to tliis matter an error should be rectified wliich ap- 
pears in the booklet of Mr. McConnell, which says, citing in his behalf 
the map of Ponce de Leon of 1864, that the Culebras River is many kilo- 
meters to the North of the Cabo Mona, wherefore the region of Gandocan 
comes on the side hitherward. I have not been able to get the map re- 
ferred to to consult it on that point; but, aside from the fact that there 
is no cause wh}' one should suppose, as does suppose ilr. McConnell, that 
this very map was the one which served as a guide to the Colombian For- 
eign Office to make the above declaration, there also exists the fact that 
no map shows in these regions another river of importance except the 
Sixaola, which is also kno'mi by the name of Culebras, Doraces, Tarire, 
and Telh-e. 

Beyond the Punta Mona, and up to a small distance from Limon, there 

* Statu quo. t Uti possidetis is the Latin for coma poseeis ("As you possess") 

+ Note of Luis Carlos Rico copied in the booklet of Mr. McConnell. 



256 

appear no rivers of relative importance except the two following: the 
Men or Hone River and the Rio del Norte. Concerning this item one 
can consult the maps of Betancourt, Peralta, Pittier, and of the Colom- 
bian Chorographical Conmiission, and of the Hydrograi)hical Office at 
Washington, made with reference to that of Ponce de Leon 3' Paz (186+) . 

Inasmuch, therefore, as the Culebras or Doraces River is the same as 
Sixaola or Telire, I will now quote the opinions to which I referred before. 

Victoriano de D. Paredes, Plenipotentiary of New Granada in 1853, 
spoke in favor of the demarcation of the dividing line, such as was then 
de facto; that is, "from the Doraces or Culebras River until the centre 
of the Golfo Dulce." 

General Pedro Alcantara Herran adhered to the above when he proposed 
as a line not of right, but of con\'eiiience, one which " begimiing in the middle 
of the principal mouth of the Doraces River which flows into the Atlantic, 
goes up stream always through the middle of the river-bed, until its som'ce; 
thence along the smnniit of the cordiUera (mountain range) to the crest of 
the Serrania de las Cruces, from there to the source of the Golfito River, 
and from there through the middle of the main river-bed of this river down 
to its opening into the Golfo Dulce." 

This line was, as far as its northern part was concerned, adopted in the 
Herran Calvo treaty of 1856, and when reporting on said treaty Senator 
Pedro Fernandez Madrid suggested that it be adopted, ^vith various ex- 
planations, of which the following was the first one: "that the River 
Doraces, Dorces or Dorado ... is the first river at a short distance towards 
east from the Punta Carreta, vulgarly called Punta del Mono."* . . . 

Mr. Angel Diaz Lemos, in his official geography book on Colombia, says, 
when enumerating the rivers of the departnient of Panama, "the Doraces 
or Culebras which provisionally marks the boundaries with Costa Rica." 

The same is said by Carlos Martinez Silva in his well-known geography. 

In his Compendimn of the History and Geogra^Ay of the United States 
of Colombia Ricardo S. Pereira describes as follows the provisory frontiers 
with Costa Rica : on the east side of the Andes mountain range the Cule- 
bras or Doraces river in its whole length; on the west slope the line de- 
scends by way of a counter of the so-caUed las Cruces mountain range to 
the sources of the Golfito River, which follows the line down stream to the 
Pacific Ocean. 

These provisory limits are the same which are presented in the respec- 

* This is a new proof of that which we have affirmed before eoncerniog the fact that Sixaola is the 
same as Doraces or Culebras River. 



257 

tive works by Dr. Manuel Ancizar, General Tomas C. de Mosquera, Felipe 
Perez, and General Antonio B. Cuervo. 

We have, therefore, proven more than sufficiently that Colombia and 
Panama have agreed that Costa Rica should occupy provisorily the region 
beyond the Sixaola, just as the latter nation has not entered any opposition 
to our sovereignty in Punta Bmuica and Golfo Dulce. This tacit agree- 
ment, sanctioned by almost a hundred years of mutual consent, constitutes 
that thing which according to McConnell's affinnation does not exist, and 
which is called statu quo. 

It can therefore be seen that it is venturesome and incorrect to assert 
of Costa Rica that it occupies presently and transitorily the Gandocan 
region with no "other title than that of usurpation. 



From the above the absence of any foundation for the reasons on which 
Mr. Herbert L. McConnell bases himself can be seen, when he petitions the 
Assembly to make a law whereby the Executive is ordered to take possession 
of the lands Vjeyond the Sixaola River, occupied by Costa Rica since time 
immemorial by virtue of an agreement which does not cease to be efficient 
even if it be only one of custom. 

Such an action on the part of Panama and its government, aside from the 
fact that it is contrary to agreement and to the practice of the Law of 
Nations, would also interrupt a diplomatic negotiation which has been 
started under fortunate auspices, which, when it has the approval of the 
National Representatives, will have fixed on the imaffectable basis of cor- 
diality the friendly relations which should exist between two nations which, 
owing to their geographical situation and their political conditions, are 
called to march side by side towards the fortunate futm-e which appears 
to await them. 

R. J. ALFARO. 



258 



REPORT OF A COMMITTEE OF THE NATIONAL ASSEMBLY 
ON THE MEMORIAL OF McCONNELL. 

HONOKABLK DEPUTIES: 

The petition presented to the National Assembly by Mr. Herbert L. Mc- 
Connell is closely related to one of the most serious problems the nation 
has to solve, and, therefore, this committee has been compelled to make 
a careful and thorough investigation, — as careful and thorough as per- 
mitted the lack of official documents and data which might have thrown 
light on the doubtful historical points involved. 

The facts that seem to have been fully established and which have given 
rise to the petition submitted to our consideration are the following: — 

After the arbitral decision by the President of the French Republic, 
which ended the controversy on boundaries between Colombia and Costa 
Rica, had been rendered, Mr. McConnell entered and cultivated certain 
lands which were situated mthin the territories assigned to Colombia 
by the said decision. Mr. McConnell transferred his banana plantations 
and his properties to the American Banana Company, and this company 
has been deprived of same by acts of the Costa-Rican authorities. 

Such proceedings of the govermiient of Costa Pdca are based, as appears 
from semi-official declarations made by our Department of Foreign Rela- 
tions, upon the existence of a tacit agreement between Colombia and Costa 
Rica by virtue of which there had been established a temporary boundary 
between the two countries pending the decision of the controversy above 
mentioned. 

The above suggests the following questions :— 

1. Has there actually existed between Colombia and Costa Rica a bind- 
ing agreement by which temporary boundaries between the two countries 
were established? 

2. When was that agreement entered into, and what are its stipulations 
and provisions? 

3. Admitting the existence of such agreement, may its terms be enforce- 
able even after the final arbitral decision has been rendered? 

These questions have to be considered before deciding whether the Re- 
public of Costa Rica had or at present has the right to exercise unlimited 
jurisdiction upon the regions assigned to Colombia by the Loubet deci- 
sion, and, consequently, to do the acts mentioned in Mr. McConneil's e:!^- 
tensive petition. 



259 

The said questions can be solved at the same time that the investigation 
by this committee is made. 

The official history of the controversy on boundaries between Colombia 
and Costa Rica, published in the Diplomatic Annals of Colombia, does not 
show the existence of the temporary agreement mentioned in the first 
question. 

An international agreement upon such an important question could not 
have been entered into and enforced without the expressed approval of 
the legislative powers of the countries interested in the controversy, and 
there is no law passed by Colombia containing any such approval. 

The Molina-Gual treaty, executed in 1825, does not contain any stipulation 
that can be construed as establishing a temporary boundary, and the sub- 
sequent treaties were not ratified bj^ the parties thereto. All these treaties 
contemplated the final and perpetual demarcation of a boundary line be- 
tween Colombia and Costa Rica, but not a temporary boundary pending 
the decision of the case. 

So it is found that the investigation of this important matter does not 
show the existence of any temporary agreement, either previous or sub- 
sequent to the arbitral treaty signed in San Jose on December 25, 1880, 
and exchanged at Panama on December 9, 1881. If there were any agree- 
ments between Colombia and Costa Rica entered into without the condi- 
tions required by the constitutions of both countries, such agreements would 
be null and void, and could not be binding upon the Repubhc of Panama. 

In connection with tliis point there has been mentioned a tacit agreement 
or statu quo upon boundaries between Colombia and Costa Rica. 

In international law there is no such a thing as tacit agreements. Such 
a term is a contradiction. 

Agreements are public treaties entered into for specific purposes, and 
which, for that reason, have a transitory existence, but that circumstance 
does not exempt them from having the constitutional requirements which 
are essential to the validity of all treaties. An international agreement 
cannot be tacit because tacit is what is not formally said, l^ut merely 
inferred, and the ^vill and the consent of two countries cannot be inferred 
from their silence, but from positive acts solemnly declared by their public 
powers in the manner prescribed by their constitutions. 

The so-called boundary statu quo between Colombia and Costa Rica 
never was an agreement, but merely an indefinite and undetermined 
position between two neighbors, which condition was not changed for the 
reason that the territories disputed were considered of little value. That 



260 

anomalous and precarious situation, therefore, was brought about by the 
negUgence of the interested parties themselves: it was not the result of 
a positive contractual act between them. There was between the two 
countries a region which was inhabited, and upon which neither of the 
two countries had jjractical jurisdiction, and the one that first occupied 
that region asserted afterwards that such occupation was the iacil alatu 
quo which they want to enforce now as valid, but which, in fact, is nothing 
more than mutual tolerance between owners of neighboring properties. 
That act does not establish the least right either between private individ- 
uals or nations. 

Therefore, even admitting the existence of the said statu quo, and that 
thereby the Republic of Costa Rica was entitled to the possession of the 
left bank of the Sixaola River, it would be necessary to examine what is 
the term of that possesison. 

The term statu qiio, used by dijjlomats, means a state of affairs before 
or after a war, a treaty, etc. (Dictionary of Zerolo e Isaza), and in the case 
at bar it could refer but to the state of affairs exising on the date of the 
exchange of the arbitral treaty between Colombia and Costa Rica, to 
wit, in 1S81. 

But what could be the purpose or the end of that so-called statu quo 
between the two parties to the controversy? The purpose could be no 
other than to leave things just as they were until the arbitrator should 
render his decision in the case. It would be strange and even absurd to 
agree upon a jurisdictional statu quo, to avoid conflicts during the period 
of litigation, and, after the decision ending such litigation is rendered, to 
argue the existence of that statu quo in support of claims upon things 
which, by virtue of that very decision, belong to others. 

The following conclusions are rightly drawn from the above statements : — 

1st. There is no official evidence of the existence of anj' temporary 
boundaries agreement between Colombia and Costa Rica binding, as a 
public treaty, the Republic of Panama, successor to Colombia. 

2nd. Even admitting that such treaty had existed, it could be nothing 
more than a transitory agreement, the force of which ceased and deter- 
mined on the day the arbitrator rendered his final decision, when such 
decision became, in accordance with the arbitral agreement, a treaty 
binding upon the parties, perfect and irrevocable, and to the upholding 
of which both countries had pledged their national honor. 

From the above conclusions it is evident that all the territories assigned 
to Colombia by the Loubet decision which afterwards became a part of 



261 

the Republic of Panama are under the jurisdiction of the latter in those 
points where the dividing line is natural, as is the case in almost all of the 
line fixed by the arbitrator which is marked by natural accident of the 
land that can be easily identified. The decision says: — 

"The boundary between the Republic of Colombia and Costa Rica shall 
be marked by the slope of the range of mountains from Cabo Mona on 
the Atlantic Ocean, and encloses on the north the valley of Tarire on the 
Sixaola River. Then by the watershed between the Atlantic and the 
Pacific up to the 9° of latitude, approximately, to continue, then, fol- 
lowing the dividing fine of the waters of the Chiriqui Viejo and the tribu- 
taries of the Golfo Dulce, ending in Punta Bmica on the Pacific." 

It will be observed that the line marking the boundary is natural in 
almost its whole length, the only point where it should be determined by 
experts being where it reaches the 9° of latitude. 

Colombia first, and Panama afterwards, had a perfect right to exercise 
jurisdiction upon all territories ■n'ithin said natural hue from the day the 
decision was rendered and published, and therefore the acts done by the 
RepulDlic of Costa Rica to the East of that line cannot be justified, and 
protest against them should have been entered by the Panama Govern- 
ment. 

From the brief examination made by this committee of the maps of 
the Republic showing the boundary line established by the Loubet deci- 
sion, it appears that the mouth of the Sixaola and the place known by 
the name of Gandocan, in wliich are situated the plantations of the Amer- 
ican Banana Company and the properties mentioned by Mr. McConnell, 
are located to the East of Punta Mona or Cabo Mona, which is the starting- 
point of the dividing line marking the hmit of the Costa-Rican territory. 
From the above it will be clearly seen that those territories belong to the 
Republic of Panama, and should be under the jmisdiction of its gov- 
ernment. 

The Republic of Costa Rica, a country with which we are intimately 
connected, has not shown on this occasion, as far as those territories are 
concerned, the respect due to international hai'mony. This is particularly 
noticealjle in a case like this where the rights of owner or lawful sovereign 
are involved, which rights have been recognized by a decision from which 
there is no appeal in accordance with the agreement of the parties to the 
contract. There seems to have been, on the part of that friendly Repub- 
lic, a tendency to create in those territories new and powerful interests 
which might be the cause of future troubles for Panama. 



262 

Such a situation should not be allowed to continue, as it ^vill have disas- 
trous results for the country. 

Now, in regard to the considerations suggested by the petition presented 
by Mr. McConuell, the conunittee is of the opinion that the said McConnell, 
as well as the company to which he transferred his properties, have a per- 
fect right to the protection of the Panama Government, inasmuch as said 
properties are located within the territory of the Republic. But such pro- 
tection cannot be given by mere legislative acts which could provide noth- 
ing that is not already provided for by the national constitution, which 
marks the territory of the Republic, and establishes the rights of its citi- 
zens and of foreigners, and by the laws that specify who are the authori- 
ties that must protect the rights of both citizens and foreigners. 

The effective protection that a State can give to individuals consists 
of the acts of the executive officers, not of legislative provisions made in 
each case of violations of the individuals' rights. In conformity with the 
above principles this conunittee finds that it would be useless for the 
National Assembly to study and pass a law instructing the Executive to 
exercise jurisdiction upon territories on which it is bound by the consti- 
tution and the laws in force to exercise the same. On the other hand, 
it would not be proper to pass a law providing protection for the rights 
of McConnell, or the company represented by him, when the Executive 
is duty bound to give such protection immediately upon request. 

However, considering the vast and important national interests in- 
volved, this conmiittee deems it proper that the National Assembly give 
emphatic expression to its firm determination to maintain the absolute 
integrity of the rights of sovereignty of the nation, which rights have not 
been defended, that their importance demands. This committee, there- 
fore, submits for your consideration the following resolution: — 

Resolved 

By the National Assembly of Panama 
That the Executive Power be notified that the National Assembly deems 
it of the highest importance for the interests of the country to exercise 
of the jurisdiction to which the RepubHc is entitled upon the territories 
belonging to it by virtue of the decision of the President of the French 
Republic, rendered on the 11th day of September, 1900, and that, there- 
fore, the proper executive instructions be issued for the prompt and effec- 
tive exercise of such jurisdiction. 



263 

The petition of Mr. McConnell is referred to the Secretary of State and 
Foreign Relations in order that he give Mr. McConnell the protection 
provided by law. 

EusEBio A. Morales, 
GoNZALO Santos K., 
Jeremias Jaen, 
Hector Contes C, 

Committee. 
Panama, November 13, 1906. 

FINAL ACTION OF THE NATIONAL ASSEMBLY OF PANAMA 
IN ANSWER TO H. L. McCONNELL'S MEMORIAL. 

Passed 29th Nov., 1906. 

Let H. L. McConnell be advised as result of his memorial, that the 
National Assembly has no power to decide the petition which he prefers. 

The Secretary of the National Assembly, 
J. D. Arosemena. 



264 



OFFICIAL DECLARATIONS SHOWING THE STATUS QUO AND 
THE EXTENT OF THE JURISDICTION OF THE TWO 
COUNTRIES. 

These are pai't of official correspondence on file with the State 
Department at Washington, and prove that the present declarations 
of the governments of Costa Rica and Panama as to the extent of their 
respective juriscUctions are strictly in accordance with the estabUshed 
historical precedents: — 

TO MINISTER GRESHMI. 
[FoH. Rel. 1894, 195.] 
No. 75. 

Legation of the United States, 

Bogota, October 1894. 

(Received November 19.) 
Sir, — I have taken from the report of the minister of foreign affairs 
a synopsis of matters wliich appear to me to be of some interest to the 
Government of the United States. I shall also forward the printed re- 
port of the minister, iu order that the Department may inform itself 
more particularly upon any subject. 

1. Boundaries between Colombia and Costa Rica. 
[Translation.] 

At your sessions of 1892 you were informed of the modification intro- 
duced into the proceedings relating to our boundaries with our neighbors 
on the north, in consequence of the arbitration treaties having lapsed. 
The causes of such lapse could not be more weighty, if we look at the 
letter and spirit of the treaties, nor more worthy of consideration, in view 
of the necessity of removing all danger of inefficacy in so important a 
matter as that of our northern frontier. 

To maintain that treaties which are void, or of very doubtful force, 
may serve as titles to extremely valuable rights, is to maintain that a 
question of this gravity may remain unsettled, or liable to future objec- 
tions. If the admission of the lapse of the treaties involved the break- 
ing off of all amicable negotiations concerning the pending dispute, there 
would be some reason for claiming that those agreements, however de- 
fective, should continue to serve as a basis in tliis matter; but, as Co- 
lombia has declared her wish that they be renewed and amended, all 
claim to the contrary fails to be just or proper. 

In the correspondence, which I have the honor to transmit herewith, 



265 

is set forth in detail the course of tliese negotiations in the last phase 
which they have assumed. Our Government -ndshes the question of our 
boundary with Costa Rica to be settled in the manner prescribed by jus- 
tice, to wit, by renewing and amending the treaties as experience demands, 
and at the time and place which may be most convenient to both coun- 
tries. 

It is desired that the treaties should contain stipidations relative to 
the practical execution of the award, to the costs of the Utigation, to the 
enlargement of the powers which the arbitrator should have, to harmon- 
ize, as far as possible, the chief interests of the parties; and our Govern- 
ment, in acting in this way, is actuated by friendship toward Costa Rica, 
and acts in confidence of its rights, strengthened by new evidence. 

The Costa-Ricau Government has at last assented to these proposals, 
as well as to that wlrich has been made to it to fix upon a temporary boun- 
dary intended to put an end to the frequent complaints addressed to it 
by Colombia of the violations of the status quo to which both countries 
are pledged ■udth respect to the possession of the zone now in dispute. 

Complaints of this kind were mutual some time ago, owing to the sur- 
veys made by the Panama Canal Company in the districts adjacent to 
the Almirante Lagoon. The San Jose Goverimient remonstrated at that 
time to the Colombian Government respecting the duties imposed by the 
status quo which had been agreed upon. The explanations on our part, 
however, were so candid and sincere that Costa Rica has not since found 
it necessary to make the slightest complaint of Colombia's proceedings. 

This has not been the case with regard to our rights to present posses- 
sion of a part of the zone in dispute. The authorities of Panama and 
Bocas del Toro, the periodical publications of the couutrj'-, the documents 
pubUshed by Costa Rica, and respectable private indi-\aduals are con- 
tinually informing the Government that agents of the neighboring Re- 
public, by what authority is not known, are committing acts of posses- 
sion incompatible with the duties which have been expressly aclcnowledged. 

On the Atlantic side, the Costa-Rican Government has definitely admitted 
that the boundary of present possession is formed by the Sixaola River, so that 
it has no right to exercise acts of jurisdiction on the right bank of that river; 
but, notwithstanding this, Costa-Rican agents or i'ndividuals have recently made 
surveys and drawn up maps on this side of the Sixaola. 

On the Pacific side, the Costa-Rican Government admitted, as far back 
as 1880, that it could not occupy territory situated on this side of Punta- 
Burica, for, at the demand of our Govermnent, it vacated that territory 



266 

in a manner which may be designated as solemn; and yet it has just 
been learned, through a perfectly reliable channel, that in that territory, 
exclusively under the jurisdiction of Colombia, colonists are setthng, 
under the protection, as is asserted, of the San Jos6 Government and 
without the consent of the Colombian Government. 

To these two species of violation of the staitis quo must be added an- 
other, which affects the whole of the boundary between the two countries. 
The Costa-Rican Government recently published a geographical map 
of its territory in which its southern frontier does not even coincide with 
the extreme claims stipulated in the old treaties, but is drawn much 
farther this way than the straight line connecting Punta-Burica with 
Escudo de Veraguas, thus embracing a part of the Colombian territory 
which has not only been always under the jurisdiction and in the pos- 
session of the Republic, but forms a part of its undisputed territory. 

These acts would not benefit Costa Rica, even if the arbitration trea- 
ties were in force, but would be prejudicial to her rights and interests, 
because they would prove, before the arbitrator, her disregard of indis- 
putable and acknowledged duties. Notice having been given of the 
abrogation of those treaties, and Costa Rica being interested in their 
renewal, it is hard to understand why, at the very time that she is negoti- 
ating for such renewal, she puts an insuperable obstacle to it; for Co- 
lombia camiot consent to the amicable act of fixing upon a temporary 
boundary and renewing the arbitration compromise, until such irregu- 
larities have ceased. 

This consideration has been the reason that the Colombian Govern- 
ment has hitherto confined itself to repeatedly calHng the attention of 
the Government of the neighboring Republic (to these facts); and it has 
received from it the most satisfactory assurances in the sense asserted by. 
Colombia. It is, however, to be presumed that the intentions of that 
Government have been thwarted by its agents, as several circumstances 
render it certain that the duties relative to the present possession of 
the disputed territory have not been thoroughly performed. 

The theoretical statement of our rights and the protests against the 
violation of them have not, therefore, had the desired effect, and in this 
situation the Vice-President of the Republic has instructed me to ad- 
dress to the Ministry of Government a communication setting forth the 
condition of affairs and the necessity of organizing at Panama two 
peaceful but active and efficient expeditions, to go, one to Punta-Burica 
and the other to Sixaola, for the purpose of making an investigation at 



267 

the principal points in those districts, in order to learn the state of things 
and to make the rectifications demanded by the rights of the Republic. 

"Marco F. Scjarez. 
J. A. Unda." 

JACOB SLEEPER, 
Charge d' Affaires ad interim. 

LETTER TO MINISTER GRESHAM. 
[Foreign Relations 1894, p. 185]. 

Legation of Colombia, 
Washington, February 22, 1894. 
(Received February 23.) 

Sir, — When, in pursuance of the express instructions of my Govern- 
ment, I intended to make certain statements to the honorable Secretary 
of State relative to the boundary question pending between Colombia 
and Costa Rica, I learned with surprise that the U.S. Government was 
under the impression that my Government had not accepted the Idnd 
assurance of its friendly desire for the settlement of that dispute in ac- 
cordance with the spirit of the treaty that was concluded to this effect, 
some years ago by the two countries, and I may deem it my duty to dis- 
pel that erroneous impression, which the course actually pursued by my 
Government is very far from justifying, as I hope to have the honor to 
show "by means of a simple statement of what has taken place in connec- 
tion with this matter. 

The Government of Colombia and that of Costa Rica, by the treaty 
of arbitration concluded between them December 25, 1880, and the ad- 
ditional treaty of January 20, 1886, agreed to settle their boundary dis- 
pute by arbitration, and to this end they appointed, in the first place. 
His Majesty Alfonso XII., and afterwards Her Majesty the present Queen 
Regent of Spain, as arbitrators. According to the treaties referred to, 
decision was to be pronounced within twentj^ months from the date of 
the acceptance of the office by the arbitrator, which acceptance took 
place on the 19th day of June, 1887, so that, according to the express 
letter of the agreement, his jurisdiction was to terminate February 19, 
1889. The last named day arrived, and the decision had not been pro- 
nounced, and the Government of Colombia informed that of Spain, through 
the Spanish representative at Bogota, under date of October 9, 1891, 
that, since the term fixed for pronouncing a decision had long since ex- 



268 

pired, its jurisdiction was ended, in consequence of which the Govern- 
ment of Her Majesty the Queen Regent of Spain dechued to have anything 
further to do with the matter. 

If a final arrangement on this subject has not been reached sooner, 
this is the fault of Costa Rica, wMch has claimed that that boundary 
should be extended until it encroached upon the region to which Colom- 
bia has a very ancient right of possession, and which is governed by its 
laws. The contrast between the course pursued by each country is very 
noteworthy: Colombia, acting uprightly, keeps within the limits of its 
right; Costa Rica, on the other hand, constantly provokes dissensions 
by attempting to extend its jurisdiction farther than it is now authorized 
to do. Both nations should respect the statu quo estabUshed in 1881, 
which, for Colombia, is law, and for Costa Rica a dead letter. As a re- 
cent practical case, I may cite, in proof of the foregoing statement, the 
course pursued by the present Costa-Rican minister of foreign affairs, 
Mr. Jimenez, who, four years ago, when he filled the same office, admitted 
that the river Sixaola was the dividing line betAveen the possessions of 
Colombia and Costa Rica, so that the eastern bank of that river belongs, 
incontestably, to Colombia, notwithstanding which, and in spite of the 
protests of the latter country, the Government of Costa Rica continues 
to place authorities in that region, thereby abusing the patient and up- 
right attitude of my Government. 

Fortunately, the time when these annoying differences must cease 
seems to be not far off. According to the last notes exchanged between 
the two Governments, there is a willingness on the part of both to con- 
clude a new treaty, submitting their conflicting claims to arbitration, 
only that of Costa Rica desires that, when a new treaty is concluded, 
the vaUdity of the old ones be submittedj to arbitration, to wliich Colom- 
bia objects as being useless and illegal. 

A new treaty is what the conditions of the dispute require, both be- 
cause it is evident that the preceding ones have lapsed, and because 
provision may thereby be made that the decision that may be pronounced 
in consequence thereof shall be executed independently of the legislative 
action of each country, and that it shall determine what is necessary 
for the payment of the indispensable technical conmiissions that will 
have to trace the final boundary line. Recent and painful experience 
induces Colombia to pay special attention to these points, although they 
are apparently mere points of detail. 

I will not close this note without declaring, in virtue of express author- 



269 

ization, that, if the decision of the arbitrator should adjudge to my Gov- 
ernment control over the territories which it thinks belong to it, it would 
recognize the rights of private parties therein, and the transfers of actual 
ownership made by Costa Rica. Citizens of the United States or any 
other foreigners that have obtained concessions of unimproved lands 
or who, for any other just cause, are the owners of lands, shall be main- 
tained in possession thereof, since every valid title is to be respected. 

Hoping that I have obtained the friendly purposes wliich I had in view , 
I have, etc. 

Julio Rengifo. 

•^ MR. SUAREZ TO MR. JIMENEZ. 
[For. Rel. 1894, p. 184.] 

Republic op Colombia, 
Department of Foreign Affairs, 
Bogota, January 12, 1894. 
Mr. Minister: 

Once more, and obliged by recent reports received by the Colombian 
Government, I have the honor earnestly to call your excellency's atten- 
tion to the grave fact that Costa Rica, as is asserted, is performing juris- 
dictional acts on the right bank of the river Sixaola, which river, as that 
government has admitted, is to mark the border line of the present pos- 
session of our two countries. If this fact is so, the Colombian Govern- 
ment, maldng use of the right which is conferred upon it by the said ad- 
mission, and complying with the common obligation which has for some 
time bound the two republics, namely, to respect the stahi quo of the 
international possession, will be obhged to proceed to positive acts in the 
defence of the im/iolability of the said territory. It is not to be supposed, 
however, in view of the wisdom and fairness which distinguish your ex- 
cellency's government, that it will be necessary to proceed to such extremes. 
Wherefore, once again, I beg your excellency to do all in your power to 
stop that occupation, against which, to protect the interests of Colombia, 
I solemnly protest. 

I also avail myself of this opportunity, Mr. Minister, to again call yom- 
excellency's attention to the need of completing, as soon as possible, as 
a practical demonstration of incontestable force, the adjustment of the 
provisional boundary between Colombia and Costa Rica. The mutual 
relations of the two states being so cordial, and the incHnations being so 
sincere in favor of a final settlement of the boundary question by means 



270 

of arbitration, it is evident that the complaints arising from the want of 
such temporary arrangement may have a pernicious effect upon these kind 
feeUngs. I beg, etc., 

(Signed) Marco F. Suarez. 



MR. JIMENEZ TO MR. SUAREZ. 
[For. Rel. 1894, p. 190.] 

Republic of Costa Rica, 
Department of Foreign Affairs, 
San Jose, February 13, 1894. 
Mr. Minister: 

I liave had tlie honor to receive your excellency's communication of the 
12th of last January, in which you call the attention of my government 
to the fact that Costa Rica is committing jurisdictional acts upon the 
right margin of the "Sixaola," in -vdolation of the statu quo in force be- 
tween the two countries. Therefore, my govermnent, always jealous 
in regard to the fulfilment of its international duties, feels obliged to in- 
form your excellency that it has not dictated any act in deterioration of 
the statu quo, and that, in order to obtain the most accurate solution of 
this delicate matter, it has requested information from the respective 
authorities, and hopes that the Colombian Government will have tlie 
kindness to expressly state the acts which led to its reclamation, in order 
to proceed according to the dictates of justice and international law. 

I have also the honor to inform your excellency that my govern- 
ment has named two scientific commissions, one under the charge 
of Naval Captain Don Eliseo Fradin, and the other under the charge 
of Don Enrique Pittier, the object of the first commission being to make 
a plan of the Sixaola, Tarire, Tiliri, or Tilorio, of the Yurquin, tributary 
of the latter, known in Colombia under the name of Dorado, or Doraces, 
aside from other rivers and places of that locality, situated in Costa-Rican 
territory; and the object of the second commission being to astronomi- 
cally establish the position of the Sixaola, or be it the point at which the 
Tiliri or Tilorio flows into the Atlantic, and the spot at which the latter 
joins the Yurquin, whose right bank is considered as the limit of the statu 
quo; and also of the Lipurio, or be it San Bernado, situated unquestion- 
ably in Costa-Rican territory, and of other important places of that region. 

The said commission left this capital eight days before the receipt of 



271 

your excellency's communication. I therefore do not believe that it could 
have referred to them; but I take this opportunity to inform your ex- 
cellency that these commissions have been appointed for the study of the 
frontier territory. After the foregoing explanation, which is a guarantee 
of the fair dealing of my government, I trust that the Colombian Govern- 
ment will be satisfied; and, with the assurances of my high appreciation 
and distinguished consideration, I remain, etc., 

(Signed) Manuel V. Jimenez. 



MR. SUAREZ TO MR. JIMENEZ. 
(For. Rel. 1894, p. 191.) 

Republic op Colombia, 

DePAKTMENT of FOEEIGiN Al'FAIRS, 

Bogota, May 18, 1894. 
Mr. Minister: 

I have the honor to refer to yoiu- excellency's notes of the 12th and 
13th of last February, relative to the boundary controversy now pending 
between Colombia and Costa Rica. 

In your first note your excellency accepts, in the name of your govern- 
ment, this govermnent's proposal to renew the treaty in regard to the 
arbitration of the boundaries and to decide upon a provisional frontier. 
In your second letter your excellency explains certain acts touching the 
interruption of the statu quo, which has been in force since 18S0, in regard 
to the zone of territory at present in dispute between Colombia and Costa 
Rica. 

In regard to this last point your excellency assures my government 
that it duly appreciates the fact that Costa Rica has not performed, is 
not performing, and will not perform any act in deterioration of the statu 
quo; that is to say, it has not performed acts of dominion, jurisdiction, 
or occupation in the territory extending along the right bank of the river 
Sixaola. 

This declaration is very welcome to the Colombian Govermnent, which 
hopes that certain public acts, such as those referring to the succession 
of Temistocles Penaranda, and others about which the authorities of 
Bocas de Toro have complained, committed by the citizens of Costa Rica, 
win have been distinguished by the goverimient of San Jose. It also 
hopes that explicit instructions will be given the commission of engineers, 



2T2 

about whom your excellency speaks in your note of February 13, not on 
any account to extend operations to the territory on this side of the said 
river, for such an act would violate the obligations of the two nations, 
and render impossible further negotiations, as I have already had the 
honor to inform your excellency. 

I improve this opportunity to call yoiu- excellency's attention to an 
act which can also hinder the termination of the matter which occupies 
us, unless immediately rectified by the Costa Rican Government. I 
refer to a map published not long ago, in which, instead of continuing 
to designate the boundaries between the two countries by the line which 
marks the most extreme claims of Costa Rica, it has been advanced much 
more toward the east, so that not only the possible rights of each nation 
are not taken into consideration, but an evident act of intrusion has been 
committed upon territory which has not been in dispute. 

The Colombian Govermiient hopes that yom' excellency's government 
will rectify as soon as possible this error, and declare that it is without 
signification, not only in regard to the rights, but also the pretensions of 
Costa Rica respecting Colombian dominions. As soon as this has been 
rectified, this ministry will be pleased to enter into negotiations with 
that under your excellency's worthy charge about the settlement of the 
provisional boundary, and the removal of the arbitration treaty in regai'd 
to definite frontiers, to which end the respective commission \\dll shortly 
be given to the envoy extraordinary and minister plenipotentiary of 
Colombia in Washington. 

I have, etc., 

(Signed) Marco F. Suarez. 



273 



CHAPTER 9. 

Containing a full citation and explanation of the laws of Colombia and Pan= 
ama relating to the cultivation and denouncement of unoccupied pub= 
lie lands, and showing that no such laws were in force in the depart= 
ment and republic of Panama. 



THE GENERAL LAWS OF COLOMBIA CITED BY H. L. Mc- 
CONNELL AS SUPPORTING HIS RIGHT TO PLANT. 

[Translation.] 

41. Any individual who occupies uncultivated land pertaining to the 
Nation for which he has not made application by the law, and who es- 
tabhshes on some a habitation and work, acquires the right of proprie- 
torship over the territory which he cultivates, whatever may be its ex- 
tent. (Art. 1, law 61 of 1874.) 

42. The law maintains the principle, that the ownership of the waste 
lands shall be acquired by their cultivation, whatever may be their ex- 
tent, and orders that the Public Ministry officially protect the cultivators 
and settlers in the possession of said lands, in conformity with the law 
61 of June 24, 1874. (Ai't. 1, law 48 of 1882.) 

43. The agents of the Public Ministry will officially protect the culti- 
vators of the waste lands, it being the duty of said agents to give them 
legal voice in the judgments of properties which may be moved against 
them. (Art. 6, Law 48 of 1882.) 

44. If there is on the waste lands pasturage for cattle, or the plan- 
tation of cocoa, coffee, sugar cane or other class of perennial planting, 
the colonist, besides acquiring the property which is conceded to him by 
the foregoing article (Nos. 41 and 42) will have the right to be adjudged., 
gratuitously a portion of the adjacent territory, equal in extent to the 
part cultivated. The Executive Power will fix the rules which should 
be observed to facilitate for the colonist the demarcation and adjudg- 
ment of said adjacent territory. (Art 2, Law 61 of 1874.) 

(The full text of these laws appears on pages .) 



274 

[Copy.] 
RiCARDO Aeias, Special Fiscal Commission 

Dr. Eusebio A. Morales, of the 

Commissioners. Republic of Panama, 

Wm. Nelson Cromwell, 49 Wall Street, Room 1212. 

Counsel. New York, December 20th, 1904. 

[Tbanslation by Mr. Macgrane Coxe.] 

{Fol. 15 of the Memorial.) 

Me. Herbert L. McConnell, 
Washington : 

My dear Sir, — With much pleasure I comply \vith your request that 
I should state my deUberate opinion Avith respect to the rights which 
you have acquired as cultivator of certain lands situate in the Province 
of Bocas del Toro, Repubhc of Panama. 



In consequence of the vexatious question with respect to the terri- 
torial hinits between the Repubhcs of Colombia and Costa Rica, the two 
countries agreed upon a status quo by which they bound themselves not 
to exercise jurisdictional acts upon the opposite banks of the river Six- 
aola while the controversy respecting the boundaries should be pending 
before the designated arbitrator which was first the King of Spain and 
afterwards the President of the French Republic. 

The decision was rendered on September 11, 1900, and by it was de- 
clared that Colombia had jurisdiction of all the territory included in the 
valley of the river Sixaola. From the very day on which this unappeal- 
able decision was rendered the status quo existing between the two coun- 
tries became virtually abrogated, since its sole object had been to avoid 
conflicts of jurisdiction during the period of the litigation. 

The controversy having been settled {concliiida) by an arbitral deci- 
sion, which, in so far as it referred to the river Sixaola and its valleys, 
would not point to any kind of doubt, those territories became a part of 
the Republic of Colombia, without any further controversy or proceed- 
ings, since the delimitation or demarcation of the Unes by means of sur- 
veys is hardly a material act and can in no way affect the substance of 
the rights declared by the arbitrator. 

Considering this territory as under Colombian jurisdiction from the 



275 

date on which the decision was promulgated to the two adjoining nations, 
Colombia has ever since been empowered to exercise the rights of domin- 
ion and sovereignty and both its citizens and foreigners had the right to 
enter these regions under the protection of its laws and to inhabit and 
cultivate them. 

II. 

Accepting these premises as absolutely correct, if you have occupied 
uncultivated lands embraced in the zone adjudicated to Colombia by the 
arbitral judgment of President Loubet, your rights, as cultivator, in con- 
formity with the laws of Colombia, are indisputable. 

According to the laws, 61 of 1874 and 48 of 1882, which I do not copy 
verbatim since I have them not now at hand, every cultivator of national 
lands acquires the ownership of the territory which he cultivates, and, if 
the cultivation consists of permanent plants, he acquires in addition the 
right to have adjudicated to him a portion of adjoining lands equal to 
that cultivated. 

As a consequence of this ownership, such cultivators have the right to 
introduce on their plantations every kind of improvements for their in- 
ternal advantage, such as railways, electric plants, wharves, etc., etc. 
Solely in a case where the party interested shall desire to offer these ser- 
vices to the public or to extend them beyond the occupied territory has 
the public authority the right to estabhsh restrictions or especial condi- 
tions. 

The laws of the Republic of Colombia ^^'hich grant these rights have 
been in force without interruption in the Republic of Panama since the 
day of its separation, and they are appKcable to-day to citizens of Costa 
Rica and foreigners alike. 

I am of the opinion, therefore, that you have acquired a perfect right 
to the ownership of the territory in which your banana plantations are 
and that the RepubUc of Panama owes you the legal duty to give you 
efficient protection in the enjoyment (or possession) of this right. 

I am, sir, 

Your obedient servant, 

(Signed) Eusebio A. Morales. 



276 



Decree No. 92 of 1881 
(9 of February) 
By which all transfers of unappropriated land situated in the state of 
Panama WERE SUSPENDED. 

The President of the United States of Colombia : 

Whereas the Senate, in its session of the fourth of the current month 
approved by unanimous vote, the following motion : 

"The executive power is to be requested to suspend all sales or adjudi- 
cation of unappropriated lands in the state of Panama: except the ad- 
judication to farmers who have acquired the right, until this congress 
legislates on the subject." 

And whereas on account of the project to excavate an inter-oceanic 
canal, which is now on the way to realization, the tracts of land which the 
nation possesses in that state may in time acquire a great value, and con- 
sequently it is wise to wait until express laAvs are enacted on the manner 
of disposing of such lands, either for the benefit of the pubhc treasury, 
or in order to assist the same undertaking so as to faciUtate it, 

Decrees That from the date of the present decree all the adjudica- 
tions and sales of unappropriated land situated in the state of Panama 
are suspended. Therefore, the president of the state shall not decree 
any provisional adjudication except only in favor of such farmers 
who, at the date of the pubhcation of this decree in the official 
gazette of the state, hold rights acquired according to the laws, which 
they will have to prove in due form. 

Given at Bogota, 9th February, 1881. 

(S) Rafael Nunez, 



Secretary of the Treasury. 
(S) tVntgnio Roldan. 



I hereby certify that the foregoing is a true copy of Decree No. 92, 
dated February 9th, 1881, as published in the Official Gazette of Panama 
(No. 574), under date of June 30th, 1892; said Official Gazette being t'ne 
official organ of the State, or Department, of Panama, and Repubfic of 
Colombia. 



277 

In Witness Whereof I have hereunto set my hand and official seal 
this 14th day of April, 1906, at Bocas del Toro, Republic of Panama. 

L. F. Ryan, 

American Constdar Agent. 
(Seal) 

The following are authorities showing that Decree No. 92 of ISSl re- 
mained in force. 

Resolution 

Concerning the Grants of Unappropriated Lands. 

Secret-VRT of the Treasury, 
Bogota, November 12, 1889. 
In \ievc of the preceding memorial and 

Whereas the sale of unappropriated lands in the extinct state of Pan- 
ama has been forbidden by an Executive Decree, number 92, of February, 
1881, and whereas the said interdict is in force at this moment, the 
grants issued in favor of said extinct state and which b}^ virtue of sales of 
its Government, have passed into the hands of private parties, would at 
the present moment not have au}^ value whatsoever, unless they would be 
made adjudicable in some unappropriated tract of the repubhc, since at 
the present moment they are only so in Panama, 

Now THEREFORE it is decreed, That the grants issued on the 26th of 
September, 1881, in favor of the extinct State of Panama are made to 
extend to adjudications in any unappropriated tract of the Repubhc. 

The Secretary, 

Felipe F. Paul. 
(Official Gazette, number 7961.) 



Bogota, AprU 24th, 1S97. 
To HIS Excellency the Governor of the Department, 
Panama : 

I have the honor of referring to the esteemed communication of j^our 
excellency, number 18th of the 11th of February last, wherewith you for- 
wai'ded to the finding of this ministr}' the decree issued by the government 
on the 9th of Februaiy last, bearing on a consultation of the Alcalde of 
Bocas del Toro concerning a dispute that arose between Messrs. Teodoro 



278 

and Andres Nunez on the boundaries and possession of the meadow which 
they are occupying. 

Since the adjudications for any unappropriated lands in this department 
having been suspended absolutely, on whatever grounds they are sought 
for, according to Decree 92 of February, 1881, this ministry is of the opin- 
ion that there is no reason that to the individuals, between whom the dis- 
pute has arisen which gave rise to the decree and the consultation of your 
excellency, the character as colonists or cultivators, nor that they should 
be given the rights as such. 

The provision of article 5 of the I^aw VI. of 1874 which refers to con- 
troversies or disputes between settlers of unoccupied lands who' have set- 
tled on one and the same locahty, A\ithout there existing any prohibition 
to settle there, does not obtain here, since the unoccupied land of Panama 
is not awardable. The ministry is therefore of the opinion that it neither 
falls to you to adjust differences nor revise any decision caused by the 
occupation of lands, between individuals who have settled there subse- 
quent to the prohibitory decree numbered 92 referred to. 

Manuel Esguerra. 



Office of the Secretary of the Treasury. 

Section 3, Decree No. 95. 

Panama, AprU 1st, 1902. 

Mr. Pablo Pinel petitions by means of the preceding promemoria for 
the reconsideration of the order of this administration of the 1st of March 
last, passed pursuant to a petition made by him, and further petitions that 
the petition made by him be decreed conformable, said petition bearing 
on the adjudication of twelve hundred hectares vmappropriated land, by 
means of a foregoing substantiation of the matter, conformably to the 
decrees, regulations and executive orders obtaining in the matter, which 
he asserts should in no case be passed over. 

The petitioner says that "the only foundations which serve as basis for 
rejecting a priori his claim, rest on the fact that the national government 
upon soHcitation of the senate of plenipotentiaries issued decree Number 
92 of the 19th of February eighteen eighty-one suspending, as says the 
Secretary of the Treasury, from that day the adjudications of unappropri- 
ated land situate in the State of Panama, and further on the fact that by 
a written communication number 18 of the 7th of February eighteen ninety- 



279 

seven the administration of the Department solicited from the National 
Government the reconsideration and modification of the said decree in 
that meaning that the prohibition treated therein be withdrawn, to which 
request the National Government would not accede, considering that the 
reasons which were taken into account when issuing said decree were still 
in existence," and to show that none of them is admissible he makes the 
following declaration ; — 

"In the first place the reservation made of a predetermined surface of 
unappropriated land in this department had for sole object to guarantee 
to the said company the right granted to it to select those [lands] which 
came to it pursuant to the concession, but inasmuch as the same had de- 
termined the zone or zones which it found suitable to take for itself, the 
said reservation no longer has any raison d'etre, and there disappears there- 
fore the prohibition to which the decree cited by you refers. With all the 
more reason since in the region of the Darien to which my petition refers 
a considerable number of hectares was adjudicated to the same company, 
and it could not there in any manner or shape claim any other adjudica- 
tion." 

"The spirit of the decree quoted was not and could not be that the gov- 
ernment should bind itself perpetually not to alienate its unappropriated 
land, and not to be able to grant the usufruct of them contrary to (the spirit 
of the legislation regulating this matter. The tnistworthy history thereof 
and its object so clearly manifested in its context show evidently that the 
prohibition or reservation had but a temporary character, which ceased 
to exist as soon as the object was attained which the government when 
issuing said decree had in mind. 

"Such was the understanding of the Executive Administration of Vice- 
President Caro when he dictated decree number 109 of the 9th of February, 
eighteen ninety-four, issued more than thirteen years later than the one 
which is cited by the Secretary of the Treasury, and which I take the liberty 
of inserting here in full in order to bring forth the inapphcability of the 
decree of wWcli I complain. 

Decree number 109 of eighteen ninety-four, February 9th, by which 
is abrogated Section 5 of Ai-ticle 1 of the decree of the 15th of Septem- 
ber, 1868, in which certain parts of the unappropriated land of the 
nation are destined for public use. The Vice-President of the Repub- 
lic, in charge of the Executive. Pursuant to the report of the Secre- 
tary of Foreign Relations, of the 27th of November, eighteen ninety- 



280 

three, and considering, first that the said decree was issued especially 
for the purpose of reserving a certain area of the unappropriated lands 
in anticipation of the fact that the line of the interoceanic canal pro- 
jected should follow the course of the Atrato River, a way which has 
been declared impracticable, aside from the fact that it was decided 
that for the digging of the said canal the region adjoining the Panama 
Railroad should be adopted, and considering, second, that the canal 
company has already taken in the region of the Darien a considerable 
part of the land coming to it, and that at the present time there does 
not exist any agreement with said Company on the part of the govern- 
ment, lo reserve for it any predetermmed zone, since the same must 
solicit like any other private party the adjudication of such land as 
it may need, in any other part of the territory of the Republic. From 
all these reasons the validity of section number 5 referred to, whereby 
a considerable amount of the unappropriated lands are withdrawn 
from agriculture and colonization: 

Now, therefore. Decrees 

Sole Article: Section 5 of the decree of the 15th of September 
eighteen sixt3^-eight is abolished. 

Given at Bogota, Februarj^ 9th, eighteen ninety-four. 

M. A. Caro. 



The Secretary of the Treasury, Pedro Bravo. 

Ofjicial Gazette, No. 9401. 

"February 23rd, 1894." 

"Section 5 mentioned in this decree is the one which approves the pro- 
hibition imjjeding the aUenation of certain unappropriated land, because 
the same is reserved for certain pubUc uses, and inasmuch as this has been 
especially abrogated, as we have just seen, it would not be possible to 
found on this disposition the order which I have proposed to impugn. Nor 
can it be argued that the suspension treated of in decree number 92 of 
eighteen eighty-one was instituted subsequently to that which now appears 
abrogated, because although no reference thereto appears in it, it also is 
abolished, because it contains the same prohibition, and as there exists, 
as it really does, another subsequent decree, which settles the matter in- 
tegrally. An accepted rule of construction holds that when a later pro- 
vision is contrary to another and preceding one, and if both antedate the 
fact to be judged, the later provision prevails. 

"If there were, therefore, some ignorant minister who declared in the 
conmiunication of which you speak, that there still existed the reasons for 
maintaining the contested prohibition, this is of no account, inasmuch 



281 

as the orders or resolutions given administratively by this judge are not 
sufficient to establish a precedent. 

"Aside from these considerations, in themselves powerful enough to 
carry to your mind the conviction that an error has been committed, an- 
other circumstance contributes to corroborate my petition; and that is, 
that adjudications have been effected of unappropriated lands in the same 
district of Darien, that is, the place for the adjudication of the land which 
I claim, in a recent period of time, and that the corresponding grant has 
been furnished by the Secretary of the Treasury of this Department. 

"Upon searching the archives, it will be found that on the 27th of No- 
vember eighteen ninety-seven five thousand hectares of unappropriated 
land were adjudicated in exchange for territorial titles, to Mr. Luis Galbois 
in the valley of Seteganti, in the Corregimiento of Cana, in the district of 
Pinogama, province of Panama, and department of the same name, and 
that the Executive approved everything." 

To dispose of the matter, the following was taken into consideration : 

In its decree of the 15th of September eighteen sixty-eight, the national 
government considered: 

First: that the opening of an interoceanic canal in Colombia territory 
has been declared by law to be of pubhc utility; 

Second: that the adjudication to private persons of unappropriated 
lands situate in the immediate neighborhood of the plan of the ways through 
which the interoceanic canal could be practically laid out, would increase 
the difficulties for the realization of this work, and that the executive 
should prevent as much as possible such difficulties, within the sphere of 
its constitutional functions, abstaining therefore from the adjudication to 
private parties of said land, considering it necessary for pubUc service ; 

Third: That for reasons also of importance for public service the Republic 
should preserve the ownership of the unappropriated land near the mari- 
time ports whose direction and administration are within the province of 
the general government, and likewise the ownership of such land where 
there are salt mines or salt wells of national ownership even if the same 
are not in process of exploitation; and keeping in mind the different routes 
through which interoceanic canals or railroads are considered practicable 
according to the different explorations made up to that time in the terri- 
tory of Colombia, it declared applicable to pubhc uses the unappropriated 
land comprised between 6 degrees 30 minutes and 8 degrees 20 minutes 
latitude north, and 2 degrees 20 minutes and 3 degrees 30 minutes west 
longitude of the meridian of Bogota. 



282 

By decree number 92 of the 9th of February eighteen eighty-one, the 
General Govermnent in consideration of the fact that the senate of pleni- 
potentiaries in its session of the 4th of that month approved unanimously 
the following proposition: " The executive is urgently requested to suspend 
all lease or adjudication of unappropriated land in the state of Panama, 
excepting the adjudication to farmers who have already acquired the right 
thereto, until congress legislates on the subject," "and for the reason that, 
on account of the project of excavating an interoceanic canal which is near 
its realization the land which the nation possesses in that state may finally 
reach great value, and that therefore it is prudent to wait until express laws 
are made concerning the manner of disposing thereof, either to the benefit 
of the national treasmy or for the purpose of furnishing assistance to the 
said enterprise so as to faciUtate it," [the government] declared suspended 
the adjudication and leasing of unappropriated land, situate in the state of 
Panama, and ordered that the President of the State should not decree any 
further provisional adjudications, except in cases indicated there. 

The prohibition involved in the decree of the 15th of September eigh- 
teen sixty-eight is not the same as the one to which the decree 92 of eigh- 
teen eighty-one refers, because they obey different motives, the first one 
being decreed for the purpose of obviating difficulties for the construction 
of the interoceanic canal, and the second is a purely fiscal measure, having 
for object the benefit of the state treasury. Such was without doubt the 
understanding of the senate of plenipotentiaries when it, in spite of the 
validity of the decree of the 15th of September eighteen sixty-eight, re- 
quested the issue of the one of eighteen eighty-one already mentioned, and 
such was also the conception of the executive when issuing decree 92 of 
the same year. 

Decree 109 of 1894 abrogates section 5 of the decree of the 15th of 
September, 1868, but it neither abolishes nor even mentions number 92 
of 1881, and, although it is certain that a rule of construction in our law 
holds that in case one subsequent law is contrary to another preceding one, 
and if both antedate the fact to be tried, the subsequent one prevails, it is 
also certain that special provisions such as the prohibition established by 
decree No. 92 mentioned prevail over those which may have a general 
character. 

The copy submitted by Mr. Pinel of the telegram sent from Bogota by 
the Secretary of the Treasury to the Governor of the Department author- 
izing him to let the petition of Mr. Galbois proceed (in January, eighteen 
ninety-seven) is an evident proof that at that time it was not assumed 



283 

that decree number 109 of eighteen ninety-four abrogated number 92 of 
eighteen eighty-one, because tliat special authorization would not have 
had any sense without the existence of the said prohibition. 

The national executive has considered decree 92 of eighteen eighty-one 
in force since the issue of No. 109 of 1894, and so has stated in a letter sent 
to the Governor of the Department by the Secretary of the Treasuiy, No. 
1074, tliird section, department of unappropriated lands, imder date of 
the 24th of April, eighteen ninety-seven (subsequent to the authority 
granted Galbois), said letter being pubUshed in No. 1060 of the Panama 
Gazette, and which reads as follows:— 

Republic of Colombia, Secretaey of the Treastjrt, 
No. 1074, Section 3, Department of Unappropriated Lands. 

Bogota, April 24th, 1897. 
To THE Governor op the Department, 
Panama: 
I have the honor of referring to the esteemed communication from you 
under number 18 of the 11th of February last, wherein you send to this 
secretary for its final decision the resolution issued by j^our office on the 
9th of February last, because of an inquir}' on the pai't of the Alcalde of 
the District of Bocas del Toro, concerning a dispute wliich has arisen be- 
tween Messrs. Teodoro Cambes and Andres Nunez, concerning the demar- 
cation and possession of the land which they occupy respectively. 

"Inasmuch as absolutely aU the adjudications for any title whatever, of 
unappropriated land in your department are suspended, pursuant to a 
decree number 92 of Febmary eighteen eighty-one, the ministry is of the 
opinion that there is no reason Avhy the indiAdduals between whom the dis- 
pute has arisen which has been the cause for the resolution and also your 
inquiry, should be given the character as colonists and cultivators, nor 
why they should be recognized as possessing the rights of such. 

"Therefore the provision of article 5 of law 61 of eighteen seventy-four 
does not apply in this case, inasmuch as said article refers to controversies 
and disputes between settlers on unappropriated land who have settled in 
one and the same locahty mthout there being any legal impediment pre- 
venting the adjudication to them, and inasmuch as the unappropriated 
land in the department of Panama is inad judicable, this office is of the 
opinion that it is not pertinent to it to decide controversies or pass on orders 
originated through the occupation of land of individuals settled there, 
subsequent to the proliibition effected in the said decree number 92. 



284 

"At the same time I regret to inform you that as to-day still the reasons 
prevail which were considered as important for the issue of such a decree, 
it is not possible to accede to your desire concerning its reconsideration, 
and modification. 

"I return to your office on four written sheets copy of the resolutions 
wliich you sent with the letter to which I reply. God preserve you. 

"Manuel Esguerra." 

Inasmuch as, as has just been shown, the prohibition entailed by decree 
92 of eighteen eighty-one is in force, tliis office is not competent to give 
free course to anj' petition concerning adjudication of imappropriated land 
and it is useless to argue contrary thereto, that in eighteen ninety-seven 
there was issued a grant of the Secretary of the Treasury of the Department 
for adjudicating a parcel of this land. First, because this was done by 
express order of the Secretary of the Treasury of the Nation, who, by law, 
intervenes in all adjudications made; and, second, because even in the case 
of this express authorization not having intervened, an}' set wliich vio- 
lates a law in force does not form any authorization to commit the same 
violation, nor does it in any case establish a legal precedent. 

The party interested, however, has still the recourse to the Secretary 
of the Treasury, and to try to obtain there an authorization of a similar 
character, as that obtained by Mr. Gaibois, and the undersigned governor 
suggests tliis course to him. 

For these reasons 

It is Resolved, That there is no cause for revoking the decree of this 
office, number 92, of the 1st of March last, issued in strict compliance 
with the specific orders of the national executive. 

Further report to the Secretary of the Treasury is to be made, for a 
definitive decision in this important matter. 

The Secretary of the Treasury. 

A true copy from the book of resolutions of section 3, for the month of 
April, nineteen hundred and two, entered on pages 166 to 179. 
Panama, July 12th, nineteen hundred and six. 

The Sub-Secretary of the Treasury. 
(Signed) 

The laws in force when the RepubHc of Panama was created, were con- 
tinued in force. 



285 

Deckeb No. 4 of 1903 

(November 4) 

On the Provisional Organization of the Republic. 

The Provisional Government Council of the Republic decrees: 
Only Article. In the RepubUc of Panama shall govern the laws 
which have been in force until now, with the modifications and alterations 
which the poHtical change that has been effected requires, and with those 
which the provisional government decrees in subsequent decrees. 
To be published. 
Given at Panama, November 4th, 1903. 

J. A. Abango. 
Fbdeeico Boyd. 
ToMAS Arias. 
The Secretary of State Eusebio A. Morales. 

The Minister of Justice Carlos A. Mendoza. 

The Secretary of the Treasury Manuel E. Amador. 

Secretary of Foreign Affairs F. V. de la Espriella. 

Minister of War & Marine Nicanor A. de Obarrio. 

A specific ruling of the Executive of the Republic of Panama that 
Decree No. 92 of 1881 remained in force in that Republic. 

Republic op Panama. 

Ministry of Public Works. 

Section 2a, No. 264. 

Panama, July 11th, 1906. 

Mr. Julio J. Fabrega, in a promemoria dated the 29th of June last, di- 
rected to His Excellency the President of the Republic, submits the fol- 
lowing inquiry: 

First: Whether decree number 92 of eighteen hundred and eighty-one, 
issued by the President of the United States of Colombia, and by means of 
which the adjudication of unappropriated land in the then sovereign state 
of Panama was in force on the 3rd of November, nineteen hundred and 
three. 

Second: And if the said decree has ceased to be in force in the Republic 
of Panama, "within what date and for what reason." 

Third: And if at the present time said decree is in force "since what 
date and for what reason it thus obtains." 



286 

To resolve on the three points transcribed, the following is considered: — 
Tliat since the issue of decree number 92 of eighteen eighty-one the pe- 
titions which have been submitted at different times for the adjudication 
of unappropriated land in the sovereign state of Panama, afterwards de- 
partment of the same name, and lately Republic of Panama, have been 
rejected because of the prohibition entailed by the said decree, not having 
been considered as a temporarj'- measure, but always as a general measure 
as long as no law or decree should have abrogated it expressly. This is 
confirmed, because although Mr. Miguel A. Caro, in charge of the Executive 
Power, abolished in his decree 109 of eighteen ninety-four section 5 of 
decree of the 15th of September, eighteen sixty-eight, which contained a 
prohil)ition similar to the one contained in the aforementioned decree, lie 
did so only for the purpose of obviating difficulties for the construction of 
the canal, for the French canal company, but the Colombian government 
in said order did not even cjuote in the considerative part the said decree 
92, whence it must be deduced that there was no intention of modifying 
a measure tending to benefit the national treasury, through the greater 
value which the unappropriated land situated in the territory of Panama 
would soon possess because of their being in the neighborhood of the im- 
portant works of that enterprise. Therefore, both at the time when Pan- 
ama was a sovereign state, and when it became a part of the central gov- 
ernment, in eighteen eighty-six, the secretary in charge of the branch of 
unappropriated lands has never in his administrative provisions or in his 
bills intended a modification or abolition of decree 92 of eighteen eighty- 
one, the issue of which was requested by the very senate of plenipotentiaries. 
Nor is it of any use to allege that shortly after the political transformation 
of eighteen eighty-six the French company entered in moram and that the 
work on the canal was suspended. Considerations of greater and different, 
value induced the secretary of the treasury, Mr. Paul, in his order of the 
12th of November, eighteen eighty-nine, to state clearly that the decree 
was in force. Also Mr. Esguerra, holding the same portefeuille, and pur- 
suant to an inquiry directed to him by the governor of the department of 
Panama, said and resolved in the same sense in his letter of the 24th of 
April, eighteen ninety-seven. 

For the sake of discussion it might be added here that law 48 of eighteen 
eighty-two like other administrative provisions of a general character, on 
the mode and manner of making adjudications of unappropriated land, 
should have supplanted the decree of which we have been speaking; but, 
if the national executive for reasons of a high public utiUty issued the same, 



287 

it is clear that he established an exception and a special measure which 
must prevail by force of principles and juridic reasons. 

The above shows therefore incontrovertibly that decree number 92 of 
eighteen eighty-one which proliibited the adjudication of unappropriated 
lands on the isthmus was in force in Colombia from the date of its issue, 
up to the 3rd of November, nineteen hundred and three, the day on which 
the new Repubhc of Panama was proclaimed. 

When the public authorities organized, the legislative body of the coun- 
try after issuing the constitution, and perhaps for the purpose that the 
decree number 92 should not be exposed to the danger of being abrogated, 
issued by executive provision law 61 of the 31st of May, nineteen hundred 
and four, which prohibits the adjudication of unappropriated land in the 
territory of the Republic, until laws on the subject should be passed. 

In view of the foregoing considerations. 

It is Resolved 

First: The executive decree number 92 of eighteen eighty-one was act- 
ually in force on the 3rd of November, nineteen hundred and three ; 

Second: The said decree ceased to be valid in the Repubhc of Panama 
from the time of sanction of law 61 of nineteen hundred and four, which 
replaced it in its effect. 

Thus the three questions of the promemoria which originates this order 
are rephed to and resolved on. 
Register, communicate and publish. 

Signature of his Excellency the President of the Republic. 
Sub-Secretary in charge of the Office, 
Ladislao Sosa. 

A true copy. 

The Sub-Secretary of the Office, 
Ladislao Sosa. 

Ricardo Ai'ias, Secretary of State and of Foreign Relations, certifies that 
the above signature, which reads "Ladislao Sosa" is authentic, and that 
Mr. Sosa occupies the office of Sub-Secretary of PubUc Works. 

Given at Panama on the 12th of July, 1906. 

Ricardo Arl^s. 

40 cent revenue stamp cancelled. 



288 

[Form fob Authentication of Signature.] 

CoNSULAH Service, U.S.A. 
Panama, Panama, July 14, 1906. 
I, Arnold Shankliri, Consul General of the United States at Panama, 
Panama, do hereby certify that the signature of Ricardo Arias, at the 
foot of the paper hereto annexed, is his true and genuine signature, made 
and acknowledged in my presence, and that the said Ricardo Ai-ias is 
personally known to me. 

In witness whereof I have hereunto set my hand and affixed the seal 
of the Consulate General at Panama, Panama, the day and year next above 
written, and of the Independence of the United States the 13. (Stamp.) 

Arnold Shanklin, 
(Seal) Consul General of the United States. 

Law 61 of 1904 
(May 31) 
A Law of Panama on the same subject. 

By force of which temporarily the adjudication of national unappro- 
priated land is suspended. 
The National Convention of Panama decrees 

Article 1. While and until the National Convention enacts the law 
which will regulate the adjudication of unappropriated land for agricult- 
ural purposes and the exploration of forests, the proceedings which are 
pending on adjudication of land or which might be presented in the offices 
of competent administrative officials are suspended. 

Article 2. The president of the RepubUc will communicate this decree 
by telegram to the governors of the provinces as soon as this law is sanc- 
tioned causing the same to be pubUshed by circular if he should tliink it 
necessary. 

Given at Panama on the 21st of the month of May, 1904. 

The President, 
(Signed) J. A. Henriquez. 

The Secretary, 
(Signed) Juan Bbin. 

Office of the President of the Republic, Panama, May 31st, 1904. 

Amador Guerrero. 
To be published and carried out. 

The Secretary of Pvblic Works, 
Manuel Quintero V. 



289 

Explanation of the laws in force in Colombia. 
Law 57 of 1887 
(April 15th) 
On the Adoption of Codes and the Unification of National Legislation. 

The Legislative National Council decrees: 

Article 1. Ninety days after the publication of these laws there shall 
govern in this Republic with the additions and modifications whereof 
the said law treats the following codes: 

The National Civil Code, sanctioned May 26, 1873. 

The Commercial Code of the extinct state of Panama, sanctioned Oc- 
tober 12, 1869. 

The National Code on the same matters, edition of 1884, which deals 
solely with maritime commerce. 

325 law 153 of 1887. 

The Penal Code of the extinct state of Cundimamarca, sanctioned on 
the 16th of October, 1858. 

The National Judicial Code, sanctioned in 1872, and revised by the law 
76 of 1873, edition of 1874. 

The National Fiscal Code, and the laws and decrees having force of laws 
concerning the organization and administration of the national 
revenues, and the national military code, and the laws which sup- 
plement, and modify it. 



290 



FULL TEXT of the LAND LAWS of Colombia, decrees relative thereto 
and official procedure thereunder which were suspended in the State 
(afterwards Department and then ReiJul)lic) of Panama. 

Law 61 of 1874. 

(24th of June.) 

SiippIeTue72tary to Title 10 of the Fiftcal Code. 

The Congress of the United States of Colombia decrees: 

AijTicLE 1. Any individual wlio occupies uncultivated land belong- 
ing to the nation for which no special application has been provided by 
the law, and who therein estabhshes his dwelling, and does farming, ac- 
quires the right of property on tlie laud he may cultivate, whatsoever 
may be the area thereof. 

Article 2. If in imappropriated land pastures for cattle, cocoa plan- 
tations, coffee plantations, cane sugar plantations, or any other class of 
permanent plantations be established, the settler aside from acquiring 
the ownership conceded to him by the previous article, will be entitled 
to have adjudicated to him gratuitously a portion of contiguous land 
equal in area to the part cultivated. The executive vn]l establish the 
rules which must be observed to facilitate for the settlers the demarca- 
tion and adjudication of the said adjacent land. 

Article 3. In the case that those who populate unappropriated land 
mark out for themselves the land in wMch they estabHsh themselves, 
enclosing it with firm and permanent enclosures, capable of preventing 
the passage of wild animals and cattle, every settler shall acquire the 
property of all the land comprised within his enclosures. 

Article 4. The settlers who may be in possession of unappropri- 
ated land shaU be considered owners of the parts ciiltivated, and thirty 
hectares adjacent to the said parts. As owners shall be considered those 
who have constructed dwellings, and founded permanent cultivations, 
during more than five years of continued possession. 

Article 5. When in one and the same locaUty various settlers estab- 
lish themselves, and if in the pursuit of their work disputes should arise, 
the poUtical authority in charge of the administration of the district or 
" Corregimiento " (district of a corregidor), within the competency of 



291 

wliich tlus locality is situated, shall, upon the written or verbal petition 
of any of the settlers, summon before it the persons between whom the 
dispute has arisen, and if the said authorities cannot succeed in having 
the said persons reach an amicable settlement, the official, after previ- 
ously inspecting in person the land, will proceed to demarcate provi- 
sorially the boundaries within which each of the colonists can continue 
his work. The official in charge of making the demarcation will make 
a record of all the incidents thereof, in a report which he shall send to the 
President or Governor of the State, or to the Prefect of the Territory, for 
his approval. 

Article 6. Uncultivated land in which work is done peacefully dur- 
ing more than one year will be considered unappropriated land, for the 
effect that the colonists that occupy said land may be considered as pos- 
sessors in good faith, and cannot be deprived of the possession except 
pursuant to a judgment handed down by a civil court or court of first 
instance. 

The interdicts of possession treated in article 1218 of the judicial code 
shall not be admissible against the settlers who shall have worked peace- 
fully during more than one year the laud of the possession of wMch it is 
intended to deprive them. 

The provisions of this article shall only be applicable concerning the 
unappropriated land that may be adjudicated subsequently, and in no 
case concerning real estate the title of which is dated prior to the date 
when this law was sanctioned. 

Article 7. In the locaUties occupied by cultivators of unappropri- 
ated lands, the executive will reserve the area of land that he may con- 
sider necessary in order that the present cultivators may extend their 
work, and for the settlement of new settlers. This area of land reserved 
for the settlers shall be fixed in each case by the executive, after he has 
been suppHed with a report from the President or Governor of the State, 
or the Prefect of the Territory, where the locahty is situated. 

Article 8. The cultivators who shall abandon the land which is con- 
ceded to them by this law, during a period under four years, shall lose the 
rights that they may have acquired in such land, which \vill revert to the 
national domain. 

Article 9. The executive is authorized to assist the fii-st one hundred 
famihes of European emigrants which may settle in the Sierra Nevada 
de Santa Marta, with a sum of one hundred dollars for each family. This 
subsidy shall be given after the necessary guarantee is given, to each 



292 

family or to the entrepreneur or entrepreneurs who undertake the col- 
onization of that territory, as the executive may see fit. 

1. The executive is likewise authorized, first: to subsidize the gov- 
ei'nment of tlie State of Magdalena with the amount of two thousand 
pesos, for the construction of a road opening communications be- 
tween the colony and the port of Santa Marta, as soon as at least ten 
families of European emigrants have established themselves in the 
Sierra Nevada de Santa Marta, and second: to subsidize, if the gov- 
ernment of said state undertake any scientific exploration in the 
territory of the Nevada said enterprise with the sum of one thousand 
pesos. 

2. In the same manner as determined in the preceding dispositions, 
the executive is authorized to furnish assistance to the emigrants 
whether Europeans or from the colonies that may establish themselves 
in any point of the high Sinu in the State of Bolivar. 

Article 10. In the immediate neighborhood of the public roads opened 
or to be opened subsequently no adjudications of unappropriated land 
can be made that may have an extent of more than two Idlometers along 
said road; those receiving adjudications of this kind of land, are obhged 
to clear and cultivate at least the twentieth part of said land, within five 
years following the date of the adjudication. In default of fulfilment 
of this obUgation, the land adjudicated will revert to the national domain. 

Article 11. Along the sides of each of the lots of unappropriated 
land that may be adjudicated in the immediate neighborhood of the 
roads mentioned in the preceding article, the executive power will reserve 
the lots of equal area, which can only be sold for money, or distributed 
to new settlers. 

Article 12. All the adjudications of unappropriated lands that may 
be made subsequently, and which cover an area exceeding two hundred 
hectares, shall be made in square lots so that the official charged with 
conveying possession thereof can in each case rectify the dimensions 
of any of their side. When the adjudication comprises an area of more 
than five thousand hectares, the surveyor who attends to the survey 
must determine the astronomical position of the land. 

Article 13. In the four years following the date of this law, the Presi- 
dent or Governors of the States and the Prefects of the Territories shall 
have the same promulgated once a month on that day where the largest 
number of people of each district congregate; and in the visits made by 
the said officials personally or through their agents they will see that the 
rights of the settlers are respected. 



298 

Article 14. The provision in article 914 of the fiscal code will obtain 
when the excess amounts to more than a tenth part of the land petitioned 
for; thus when it does not exceed the said tenth part all the land will 
be adjudicated to the denouncer, if he pays therefor in the manner pro- 
vided by the said code. 

Article 15. The Presidents or Governors of the States, or the Pre- 
fects of the National Territories, shall see that the land occupied under 
the tei-ms of the preceding articles, are bounded, and shall send the files 
to the Secretary of the Treasury, in order that a corresponding title of 
adjudication may be issued. 

Article 16. For the efl'ects of article 879 of the Fiscal Code, the doc- 
ument evidencing the payment shall be considered as a legitimate title, 
provided that the interested party have designated the time of adjudica- 
tion and that at least twenty years have passed since said payment 
was made. 

Given at Bogota, twenty-second of June, 1874. 

The President of the Senate of Plefiiifotentiaries, Luis Capella Toledo. 

President of the Chamber of Representatives, Mateo Iturralde. 

Secretary of the Senate of Plenipotentaries, Julio E. Perez. 

Secretary of the Chamber of Representatives, J. David Guarin, 

Bogota, 24th of June, 1874. 
Publish and Execute. 

The President of the Union, S. Perez. 

The Secretary of the Treasury and Public Works, Aquileo Parra. 

(Published in the Diario Oficial nuinero 3,199, of 1874.) 



Law 48 of 1882. 

(28th of August.) 

Relating to Unappropriated Lands. 

The Congress of the United States of Colombia decrees : 
Article 1. The law maintains the principle that the ownership of 
unappropriated lands is acquired by cultivation, whatever may be the 
extent and orders that the attorney general protect ex officio the culti- 
vators and settlers in the possession of said land, conformable to law 61 
of the 24th of June, 1874. 

To acquire gratuitously the portion of adjacent land equal in area 



294 

to the oue occupied, ^^'ith pastures for cattle, conformably to article 3 of 
the law 61 of 1874, it is necessary that said portion occupied be 
covered with artificial pastures. The owners of cattle pastures who have 
established themselves in natural pasture grounds of the unappropri- 
ated lands, shall only be entitled to the use of said land as long as they 
are occupied. 

The property of the land fenced in by the colonists in the manner de- 
scribed in article 3 of the law 61 of 1874 shall not extend over a portion 
larger than twice the amount of that which is cultivated. 

Article 2. The cultivators of the unappropriated laud established 
therein with dwelling-house and farm work, shall be considered as pos- 
sessors in good faith, and it shall not be possible to deprive them of the 
possession except by a judgment handed down in a common civil suit. 

Article 3. Unappropriated land is considered as property of public 
use, and the ownership thereof does not prescribe against the nation in 
any case, conformably to the provision in article 2519 of the civil code. 

Article 4. In the plenary suit on property of land, the only admis- 
sible suit against the cultivators of unappropriated land established therein 
with house and farm work, the complainant must exhibit the legal titles 
of ownership of the land which he claims, which must have an age of ten 
years at least, and in which there must be expressed with perfect clear- 
ness the boundaries of the land wliich he claims as liis own. 

Article 5. Even in the case that the cultivator lose the ownersliip 
suit, he shall not be dispossessed of the land which he occupies, except 
after he has been indemnified for the value of the improvements wrought 
on the land, as possessor in good faith. 

1. The improvements to which this article refers, consist in the 
clearings, fences, cultivations and dwellings, which will be appraised 
by experts, as is provided by the judicial code of the Union, in the 
territories, and the judicial code of the State, in which the adjudica- 
tion may have been effected. 

2. As long as the payment has not been effected representing the 
value of the improvements, there exists no right to demand the eject- 
ment. 

Article 6. The agents of the attorney general shall protect ex officio 
the cultivators of unappropriated land, and said agents must be con- 
sidered as legitimate parties in the suits for ownership that may be in- 
stituted against the latter. 

Article 7. The unappropriated land winch the nation may alienate 
for any cause, reverts gratuitously to it at the end of ten years if, within 



295 

this time, some agricultural or cattle industry have been established in 
said land. 

The regulations of the executive shall determine beforehand and 
with absolute certainty, the relation between the area adjudicated and 
that which shall be cultivated or occupied for cattle raising, neces- 
sary to preserve said adjudicated area, but in no case shall there be 
fixed less than one-tenth part of the adjudicated portion for such pur- 
pose. 
Article 8. Unappropriated land which for any cause is adjudicated 
remains subject to the necessary servitudes for the convenient use and 
enjoyment of the land which remains unappropriated and which may 
require these servitudes. 

Article 9. . In every adjudication of unappropriated land, for what- 
ever cause it may be made, it is understood that the rights of ownership 
of the occupiers are expressly saved, and these shall be protected against 
the adjudicataries according to the terms of the present law. 

Article 10. In every adjudication of unappropriated land which may 
comprise an area of more than one thousand hectares, the surveyor who 
attends to the survey and drawing of plans shall determine the astronomic 
position of the land by longitude and latitude, of one of its points, on 
any of its boundaries. 

Article 11. In no case will it be possible to adjudicate to one and 
the same individual or company an area of land exceeding five thousand 
hectares, nor to different persons or entities in continued area an area 
larger than five thousand hectares. Thus between one and the other 
portion there shall always be left alternate lots of at least the same area 
as the adjudicated ones, wliich the nation may reserve exclusively for 
cultivators. In each case it shall be also required that the perimeter 
of the area wliich is to be adjudicated be such that its greatest length be 
approximately equal to its greatest width. 

Article 12. Unappropriated land that exists in the mountain ranges 
that serve as boundaries for two or more states, and between the populated 
centres of each state, and the navigable rivers that may be national traffic 
ways, are reserved to be applied exclusively to the following objects: first, 
for the founding of new towns; and, second, for adjudications to culti- 
vators; and, third, for the development of roads of communication. 

Article 13. The executive shall prescribe aU the provisions necessary 
that this law may be duly observed. He will order that thereof and of the 
provisions in force of law 61 of 1874 and its concordance there be made 



296 

a special edition, which shall be distributed gratis and widely in all the 
towns of the Republic, in order that it may come to the knowledge of the 
cultivators and settlers of unappropriated lands. 

Article 14. The provisions of the present law do not affect the rights 
acquired by the adjudicataries or purchasers pursuant to the provisions in 
the matter in force at the time when the adjudication or sale was made. 

Given in Bogota, Aug-ust 24th, 1882. 

The President of the Senate of Plenipotentiaries, Anibal Galindo. 
President of the Chamber of Representatives, Francisco Munoz. 
Secretary of the Senate of Plenipotentiaries, Julio E. Perez. 

Secretary of the Chamber of Representatives, Carlos Cotes. 

National Executive, Bogota, Aug-ust 28, 1882. 
Publish and execute. Francisco J. Zaldua. 

The Secretary of the Treasury, Miguel Samper. 

(Published in the Diario Oficial number 5,457, of 1882.) 



Decree No. 832 op 1884, 

(October 11th.) 

Enacting the Laws of 61 of 1874 and 48 of 1882. 

The President of the United States of Colombia : 

Whereas : 

First: To facilitate the acquaintance with the executive provisions on 
unappropriated land, referring to cultivators, it is necessary to embody 
them in one sole decree, from which it is possible to gain an insight into 
the proceedings for adjudication on gratuitous title; 

Second: It is necessary to present clearly the intent of the laws on the 
matter, for the purpose that it may be known positively what are the rights 
conceded by these laws, and what are the obhgations contracted by the 
cultivators that become adjudicataries of unappropriated land. 

Third: The lack of acquaintance with the legal and executive provisions 
is the cause that the officials in charge of making demarcations for the 
cultivators established in said lands, may consider as acquired rights, facts 
that have not been within the conception of the legislators, and may bound 
portions of land which, according to the laws, should not be alienated, 



297 

a proceeding with which far from furthering the object of promoting agri- 
culture, distribute suitably property and populate the deserted districts 
of the repubhc, rise is given to abuses wMch require to be remedied. 

Herewith decrees: 

Article 1. The rights which laws 61 of 1874 and 48 of 1882 concede 
to the cultivators who have established themselves or may estabUsh them- 
selves in the land of the nation, are the following : 

First: Every person that may occupy unappropriated land and may es- 
tablish therein a dwelling-house and artificial cultivation, acquires a right 
of ownership to the cultivated land, whatever may be its area. 

Second: If the cultivations consist in artificial pastures, coffee planta- 
tions [ht. seeded lands], cocoa plantations, or plantations of any other 
fruit wherein it is not necessary to repeat the sowing process to obtain 
periodic crops the cultivator acquires the right that he be adjudicated a 
portion of uncultivated adjacent land next to the cultivated portion and 
equal to the latter in area. 

Third: If the cultivations are of the kind, where renewed sowing is 
required to obtain crops, as for potatoes, wheat, maize, etc., the colonist 
acquires the right to thirty hectares more of uncultivated land, adjacent 
to the tilled land. 

Fourth: Any person who may have cultivated unappropriated land, and 
has thereon a house, and has not abandoned the cultivation for more than 
one year prior to obtaining the adjudication thereof, acquires the right 
of being protected ex officio by the authorities in the terms of law 48 of 
1882. - 

Fifth: When land occupied by cultivators is soUcited for adjudication 
in exchange for titles of concession, such cultivators are entitled to be pro- 
tected in the possession of the land that they may have cultivated, and 
in the portion adjacent treated of in sections 2 and 3 preceding, whatever 
may be the time of the actual presence on that land. In this case the sur- 
veyors appointed for effecting the survey of the land shall demarcate the 
portions of the cultivators and deduct the area of the latter from that which 
results from the survey of the whole tract asked for in exchange of title. 
Without this requirement the adjudication shall not be decreed. 

Sixth: If by way of an exchange of title, a tract occupied by colonists is 
asked for in adjudication these shall not have any right of ownership nor 
of any indenmification if as improvements they only exhibit stubble fields 
or overgrowth of weeds, nor shall they have any right to indemnification 



298 

for improvements when these consist in clearings and fences except in the 
case where there are cultivations and dweUing-houses, as these two con- 
ditions together are the ones that create the origin for the rights conceded 
by law, or wliere these clearings and fences have been made recently and 
in the intention of cultivating the land. 

Seventh: No cultivator is entitled to have adjudicated to liim two or 
more separate lots, conformably to provision of article 913 of the fiscal 
code. Therefore the officials in charge of making demarcations shall not 
effect such demarcations except on one sole lot where the colonist has his 
dweUing-house. The same rule shall be observed by the surveyors when 
demarcating the portions occupied by cultivators in the land sohcited in 
adjudication, by way of an exchange of titles. 

Eighth: No cultivator is permitted to sell the land he may possess as 
cultivated land except after he has obtained the title of property issued to 
him by the secretary of the Treasury of the Union, a title which shall not 
be definitive except when the cultivator proves that after obtaining it he 
has not abandoned the land during a period under four years, conformably 
to the provisions of article 8 of law 61 of 1874. 

In this case the purchaser acquires the same rights and obligations which 
the vendor had, being therefore subject to the obUgation of continuing the 
cultivation of the land, because, if he were to abandon the work during the 
four years of which article S akeady mentioned speaks, the land would 
revert to the national domain. If the cultivator should sell the improve- 
ments prior to obtaining the title, the purchaser is held to continue the 
cultivation of the land if he washes to have his rights recognized, conform- 
ably to the provisions already established. 

Ninth: The right of ownersliip to land which is artificially fenced in 
conceded by article 3 of law 61 of 1874, shall only be recognized in the case 
that the occupier has estabhshed cultivations, and never to a larger ex- 
tent than twice the area of the cultivated part, conformably to provisions' 
of the paragraph of article 1 of the law 48 of 1882. It is understood that 
the enclosures shall be firm and permanent, capable of preventing the pas- 
sage of wild beasts or cattle. 

Article 2. Conformably to paragraph under article 1 of the law 48 
of 1882 those are entitled to the use of land wliich they occupy with cattle, 
who have established ranches in the natural pastures of the unappropri- 
ated lands; but as the said paragraph provides that the said individuals 
do not acquire right of property in the land and as the rights of the nation 
do not prescribe against said nation, conformably to article 3 of the same 



299 

law, land thus occupied shall be adjudicable to any one who may solicit 
the same by way of a title of concession; but circumstances being equal, 
the first occupier shall be preferred. 

Article 3. Any person who, in the exercise of the rights conceded by 
laws 61 of 1874 and 48 of 1882, estabhshes himself with dwelling-house and 
permanent cultivations upon unappropriated land is bound to report this 
fact to the president or governor of the state or the prefect of the territory 
wherein said land is situated, stating what approximate area he has occu- 
pied with plantations, in order that the land occupied may be bounded for 
him, in conformity with the following provisions : 

Article 4. When at the office of a president, governor or prefect the 
communication referred to in the preceding article has been received, the 
first pohtical authority of the place where the land is situated shall be 
ordered to proceed, after by information as to the plain facts the land has 
been shown to be unappropriated, to carry out in connection with the rep- 
resentative of the attorney general, and two experts, the demarcation of 
the cultivated land, and of the adjacent portion, treated of in sub-sections 
2 and 3 of article 1 of tliis decree, not forgetting, further, the provisions 
of sections 6 and 7 of the same article. 

For demarcations of portions under one hundred hectares, the experts 
shall measure as exactly as possible the cultivated part and the adjacent 
part, specifying by an entry the operations performed by them for this pur- 
pose, in the corresponding record of demarcation. If this survey should 
not be possible, owing to the fact that the experts do not possess enough 
knowledge to survey land, whose perifneter is irregular, then the demarca- 
tion shall be made in square lots. 

Article 5. Before effecting the demarcation, there shall appear for 
thirty days some advertisement in a public place of the district, where the 
land is situated, stating the general boimdaries of the tract cultivated, the 
name by wliich the land may be known, the land on which it adjoins, and 
the petition for demarcation which may have been made. When the time 
during which said notice is displayed has expired, and no opposition has 
been presented, the demarcation shall be carried out, and the said notices 
shall be taken down to send their originals together with a record of de- 
marcation, and the statement as to witnesses, to the president, governor 
or prefect, for the effects of article 922 of the fiscal code. 

Article 6. The record of demarcation shall contain the name of the 
cultivator, the area of the land, wliich is demarcated in liis favor, the boun- 
daries within which it is comprised, and which must be fixed on the land, 



300 

and described in the records as clearly as may be possible, so as to avoid 
subsequent disputes, between the cultivators themselves, or with the 
owners of adjoining land. 

Article 7. It is the duty of the presidents or governors of the states, 
or prefects of territories to procure for themselves the reports and docu- 
ments necessary to prove the cases of abandonment of land adjudicated to 
cultivators, on the part of the latter, in order that it may be declared that 
the abandoned land reverts to the domain of the nation. 

Article 8. Since up to the present time the provisions of article 15 of 
law 61 of 1874 have not been comphed with, the presidents or governors 
of the states and the prefects of the national territories shall order that 
the pohtical authorities of each district or corregimiento make up a list of 
all the cultivators estabhshed in their jurisdiction, that they demarcate 
the cultivated lands for those who have not as yet obtained the title of 
ownersliip, conformably with the provisions contained in the foregoing 
articles, that they report whether the said cultivators have complied with 
the provisions of the law, not to abandon the land, and to increase the 
cultivation, and that they send all these records to the office of president or 
governor of the state, or the prefecture of the territory for the effects of 
article 5 of this decree. The provisions in the foregoing article must be 
complied •nath as soon as possible. 

Article 9. The duty of the surveyors appointed for surveying unappro- 
priated land is as follows, both for adjudications solicited by cultivators 
and for those \\'hich are petitioned for by way of an exchange of title. 

First: To leave around the land they may survey an area sufficient so 
that on each of the sides of the perimeter of the land surveyed there may 
be formed the lots which the law destines exclusively for cultivators, said 
lots not to have an area less than that of the land surveyed. No adjudi- 
cation of land shall be decreed which forms a continuation of other land 
that may have been adjudicated as unappropriated to the same person" 
who petitions for said land. 

Second: The tracts which are surveyed shall be as regular as the con- 
formation of the land allows, and in all cases shall the line of its greatest 
length be approximately equal to the greatest width of the land. 

Third: They shall submit a scientific and specified exposition both of 
the operations carried out for drawing up the plan, and of the calculations 
made for determining the area of the land surveyed. Said exposition shall 
moreover contain an enumeration of the boundaries, starting from a fixed 
and invariable point, which is knoMoi, or can be recognized at any time, 



301 

the said statement to be as clear as possible, so as to avoid subsequent 
disputes mth the owners of adjoining land, which latter must be indicated 
in the said report, the quality and climatic conditions of the land, as far 
as possible the resources in flora, or in minerals, of said land, and the geo- 
graphical description of the district, wMch must embrace at least a radius 
of ten leagues. 

Fourth: "^Alieu the land surveyed has an area of one thousand hectares 
or more, the surveyor must determine the astronomic latitude, of one of 
the points, whatever it may be, of the perimeter, stating even approxi- 
mately the seconds, and if the surveyors should have chronometers adjusted 
to the meridian of Bogota, they shall also make the calculation of the 
longitude approximately down to seconds. In the contrary case, the cal- 
culation will be as close as may be possible. In the corresponding report 
or record a detailed statement of the calculations and observations that 
may be made for determining the geographical co-ordinates shall also 
appear. 

Fifth: The scale that is to be used for drawing up the plans shall be 
1 millimeter to 10 meters, for adjudications below two thousand hectares, 
and 1 milUmeter to 20 meters for areas over two thousand hectares, and 
up to five thousand hectares, which is the Kmit fixed by law for all adju- 
dications. 

Sixth: The plans shall contain all the topographical details of the land. 
The quotations in figures of aU the fines of the perimeter, and of those 
appearing in the geometrical figures which may have been used for cal- 
culating the area; the magnetic direction of each side of the perimeter, 
the name of the owners of the adjoining lands, the name of the mountain 
ranges and of the rivers or ravines, the demarcation of land occupied by 
cultivators, if there be any (and concerning these, mention must also be 
made in the report). At the side of the plans the compass shall be indi- 
cated, fikewise the geographical position, the square area in detail, and 
the scale. These plans must be submitted in duplicate, each signed by 
the surveyor and the party interested, after which they shall be authen- 
ticated by the respective president, governor or prefect of the national 
territory. 

The government engineer in charge of the branch of unappropriated 
lands shall collect the geographical descriptions which each report contains 
in a methodical way, and the collection thus made shaU be sent each year 
to the secretary of pubhc works, etc., where the notes and corrections neces- 
sary shall be made on the maps of the repubUc. 



302 

Article 10. For the make up of every protocol on the adjudication 
of unappropriated land the display of notices for thirty days in the pubUc 
places of the districts or corregimientos where the land petitioned for is 
situated is an indispensable condition. These notices which also shall be 
published in the official paper of the state, shall be displayed as soon as 
the denouncement, and the petition of adjudication of such land are made, 
and shall contain the name by which the land may be known, the general 
boundaries defining it, the name of the owners of the adjoining lands, 
and the petition for adjudication made therefor. 

Article 11. Since the motive of the display of the notice referred to 
in the preceding article is that the owners of the adjoining land or those 
who may believe that they have some right to the land petitioned for, may 
make their claims in due time, the presidents or governors of the states or 
the prefects of the territories, shall not issue any decree bearing on survey 
and provisory adjudication of the land, before the time for displaying the 
notices has passed. In case there is any opposition the contest shall be 
decided on in the administrative way, in view of the titles wliich the 
opponent shall submit, before the decree spoken of above is issued. 

Article 12. Both the cultivators who may obtain the adjudication of 
an uncultivated portion contiguous to the cultivated portion, and the per- 
sons that may obtain the adjudication by way of an exchange of title, shall 
cultivate the land within the ten years following the date of final adjudica- 
tion, in the following proportions: 

40 per cent, for adjudications up to 200 hectares. 

35 per cent, for adjudications from 201 up to 300 hectares. 

30 cent, for adjudications from 301 to 500 hectares. 

25 per cent, for adjudications from 501 up to 1,000 hectares. 

20 per cent, for adjudications from 1,001 up to 2,000 hectares. 

15 per cent, for adjudications from 2,001 up to 3,000 hectares. 

10 per cent, for adjudications from 3,001 up to 5,000 hectares. 

The third section of the treasury shall demand in due season 
the reports necessary to know concerning which adjudications the condi- 
tions stipulated in article 7 of the law 48 of 1882, and 12 of this decree, 
must be complied with, in order that in default of fulfilment the land may 
revert to the national domain. The compilation of every act bearing on 
adjudication of unappropriated land must be made in conformity with the 
provisions of this decree, and in conformity with the circular which the 
secretary of the treasury will issue in due time, in the manner in which to 
make up documents wherein adjudication of unappropriated land for any 
title is petitioned for. 



303 

Article 14. Decrees No. 518 of 1874 and 371 of 1879 and 640 of 
1882 are herewith repealed. Likewise is repealed resohition of the 8th 
of July, 1872, pubhshed in the Official Gazette number 2594, in which the 
quota to be adopted according to the area surveyed had been defined. 

Given at Bogota, on the 11th of October, 1884. 

The Secretary of the Treasury, 
F. Angulo. 
Raf,\el Nunez. 

(Published in number 6230 of the Official Gazette, of 1884, and repro- 
duced in the No. 543 of the official register of 1893.) 



Circular Number 94, 

by which the drawing up of documents bearing on U7iappropriated lands 
is regulated. 



United States op Colombia. 
National Executive. 

Office op the Secretary of the Treasury. 
Section 3. Department of Unappropriated Lands. No. 94. 

Bogota, October fifteenth, 1884. 

To THE Secretary General, or to the Secretary of the Treasury 
OF the State of ... or to the Prefect op the National Ter- 
ritory OF ... : 

Inasmuch as through the laws and through executive decree number 
832 of the current year some of the provisions on which the circular 945 
of the 29th of December of 1880 of this Secretary's Office is based, have 
been changed, the executive Power has decided upon issuing a new set 
of regulations bearing on the formation of the documents connected with 
the adjudications of unappropriated land on any title. From the time of 
receipt of the present circular in your offices, all documents to be drawn 
up for the purpose indicated shall be conformable to the following pro- 



304 



Adjudications by Way of Change of Title. 

(1) There sliall be made an investigation de facto nvdo, by means of 
the depositions of equal tenor of five witnesses, made before a Judge, 
Alcalde or a Corregidor, and in the presence of the District Attornej', 
said witnesses to declare that they know for certain : ■ 

That the land which is desired in adjudication is unappropriated, 

That the land is not destined for any determinate pubUc use, 

And that it is removed more than a myriameter from the tracing of 

projected railroads or such that are in course of construction. 
The ofhcial who examines the witnesses shall certify at the bottom of 

the investigation as to the fitness of said witnesses for such deposition, 

in compliance with the requirements of the Judicial Code of such state 

or the national judicial code in force in the territories. 

(2) The party interested shall submit a promemoria to the President 
or Governor of the State or the Prefect of the National Territory, in wliich 
he denounces the tracts as unappropriated and petitions for their adjudi- 
cation of all or a part of them, stating the name by wliich they are known 
^f they have one — the province, department, municipality, district 
or corregidor's district, wherein they are situate; the land with which 
they are bounded and such other indications as may convey a clear knowl- 
edge thereof. 

To this promemoria there must be added the investigation through 
witnesses referred to and the titles of concessions sufficient to cover the 
number of hectares of the tracts that are solicited, with the express warn- 
ing that by way of title-change no more than 5,000 hectares can be 
adjudicated. 

(3) Upon receiving the previously indicated promemoria, the Presi- 
dent or Governor of the State, or Prefect of the Territory will order the 
denouncement made to be pubUshed in the Official Gazette; he also shall 
order that the Alcalde or Corregidor of the District where said tracts are 
situated, put up notices in the pubUc places with the statement that 
the tracts comprised within the boundaries indicated have been peti- 
tioned for in adjudication as being unappropriated. In said notice the 
name of the lands petitioned for shall be given, the names of the owners 
of adjoining land and such other indications by which said tracts may 
be known clearly. These notices shall remain displayed for the time of 
30 days. 

If the adjoining owners, or persons beheving to have a right to the 



305 

tracts solicited, put in a claim during the time in which the notices must 
remain displayed, such claims shall be decided upon in the administra- 
tive way in view of the legal titles that may be exhibited; if there be no 
claims the President or Governor of the State, or Prefect of the National 
Territory, shall appoint a surveyor and shall contract with liim to make 
a plan of the land at the expense of the party interested, always remem- 
bering when entering into said contract the provisions of article 9 of De- 
cree number 832 of tliis year. The Surveyor shall submit two copies 
of the plan and a scientific statement of the operations carried out for 
the survey and for the making-up of the topographical plan. 

(5) On the plan there shall be indicated with different colors, aside 
from other points concerning topographical drawing, those parts of the 
tract which are prairies, those that are covered with underbrush and 
those that are wooded. There must be equally represented all the rivers 
and water-courses of any importance which irrigate the land specify- 
ing the names they might have, and the roads or paths that lead through it. 

(6) Both the specified statement of the surveyor and the plans he 
makes pursuant to his contract, shall be signed by him and by the party 
interested, without which it [they] shall not have any legal authenticity 
for official purposes. 

(7) If there be any settlers established in the tracts which are petitioned 
for, the surveyor shall survey and demarcate, both on the land itself 
and on the plan, the area occupied by every one of them, remembering 
in such cases the provisions of article 1 of the said decree. 

(8) After the survey of the land has been carried out and after the 
plans of the same have been submitted, the President, Governor or Pre- 
fect, shall put on each of them a notice of authenticity with his signa- 
ture and that of the respective secretary. 

(9) When the documents have been prepared and all the requirements 
expressed in the previous sections have been complied with, the Gov- 
ernor, President or Prefect will issue the decision, provisional or that 
which he considers just, which will be communicated with such obser- 
vations as he may deem fit to the Secretary of the Treasury, sending 
to the latter the original documents. As an essential part of said set 
of documents one of the plans authenticated must be sent at the same 
time, and the other copy will be deposited in the archives of the 
respective offices of President, Governor or Prefect of a Territory, 
with the understanding that the party interested may make use thereof 
when he has to take possession of the land. 



306 

(10) After the documents have been received at the office of the Sec- 
retary of the Treasury of the Union, the Executive shall issue the deci- 
sion which he may deem fit and shall return it in order that througli the 
respective President, Governor or Prefect the delivery of the land be 
oitlered, in case the decision have been favorable to the party interested, 
in which case the office of the secretary of the treasury of the Union will 
cause to be caiicelled the titles which have been presented in payment 
of the adjudication. 

(11) The deUvery of the land to the persons to whom the same is ad- 
judicated, shall be effected conformably to the provisions in the Execu- 
tive Decree number 334 of 1878 {Official Gazette number 4343), taking 
into account when effecting it that the rights nmst be saved of the cul- 
tivators who may have established themselves in the land prior to the 
provisory adjudication, with a dweUing-house and artificial cultivations 
(decree number 334 of which this regulation speaks, was abolished by 
decree number 878, published in numbers 8207 and 8208 of the Official 
Gazette) . 

(12) After the delivery of the land has been effected and the corre- 
sponding protocol has been added to the files, a title will be issued to 
the party interested, should he so wish it, in the terms of article 931 of 
the Fiscal Code; after that the set of documents shall be returned to the 
office of the secretary of the Union to be deposited definitely in the archives 
thereof. This will even take place in the case where the adjudicatary 
shall fail to petition for the execution of the title. 



Adjudications to Colonists or Cultivators. 

(13) Conformably with dispositions of articles 932 and 933 of the 
Fiscal Code, 15 of Law 61 of 1874, and in comphance with those of the 
national civil code .obtaining here, the traditio dominii of unappropriated 
land cannot be considered as having been effected and perfected, if the 
title which proves the acquired property, be not obtained. Tliis title is 
made up in some cases of the protocols of adjudication, demarcation and 
delivery by the national officials, determined by the laws and executive 
decrees on the matter, and in other cases of a public deed duly recorded 
conformably to the Civil Code, and wherein must be contained the pro- 
tocols enumerated in article 931 of the Fiscal Code. But in every case 
the delivery of the dominium rests on an adjudication decreed by the Na- 
tional executive; without that the traditio does not take place, even if 



307 

pursuant to general laws or special laws the concession of unappropri- 
ated lands should have been made. 

(14) Every person who as colonist or cultivator believes to have ac- 
quired any of the rights expressed in article 1 and its subdivisions, of 
Decree 832 of the current year, must solicit for liimself the demarcation 
and adjudication from the President or Governor of the State or the 
Prefect of the National Territory wherein the land is situate, in the 
manner expressed in subsection 2 of this circular, enclosing in his petition 
the investigation through witnesses of wliich subsection 1 treats. In this 
investigation (protocol) of witnesses, the latter must in addition de- 
clare, that they know for certain that petitioner has a dwelling-house 
and artificial cultivation estalshshed thereon, and they shall Ukewise 
express the length of time of the occupation and the land of cultivation. 
In the petition referred to the colonist shall likewise indicate the area 
that he is occupying, which he shall calculate approximately if he does 
not know it exactly. 

(15) After a petition made up in the terms of the preceding section has 
been received, the President or Governor of State, or Prefect of the Na- 
tional Territory shall order the display of notices as indicated under No. 
3 of this circular, and after the time for their display has passed, he shall 
order the demarcation of the land through experts acting in the com- 
munity with the first political (adixiimstrative) power and mth the repre- 
sentative of the attorney-general, at the place where the land is situated, 
if the latter does not exceed one liundred hectares. In the contrary case, 
that is to say when the land comprises an area larger than 100 hectares, 
the .colonist is obliged to ask from the proper authorities the survey of 
the land as indicated in subsection 4. The demarcation of the land by 
experts will be effected in compliance with the provisions of articles 4 
and 6 of the Decree referred to. If during the thirty days during which 
the notices must remain displayed there appears any person who objects 
to the denouncement and the petition of demarcation made by the cul- 
tivator or colonist, the controversy shall be settled in the administrative 
way in view of what titles the opponent may present. If, however, the 
opponent or the colonist should appeal from the decision, then the Judi- 
cial Power shall decide it in conformity with articles 4, 5 and 6 of Law 
48 of 1882. 

(16) After the demarcation or the survey has been effected and the 
protocol thereof has been added to the other documents, the latter will 
be returned to the president or governor of State or Prefect of the national 



308 

territory that he may decree the provisory adjudication, if the documents 
be in good order; if that be not the case, they shall be returned for remedy 
of such defects as they may have. Wlieii the documents are again re- 
ceived in perfect order, the said President or Governor of the State or 
Prefect of the National Territory shall decree the provisional adjudica- 
tion and shall send them to the Secretary of the Treasury in order that 
the latter decree the definitive adjudication. 

(17) If the definitive adjudication be decreed, provided there is cause 
therefor, and after the documents have gone back to the Governor or 
President of the State or Prefect of the Territory, who substantiated 
same, he will order that the delivery of the property adjudicated be made, 
in the terms of article 932 of the Fiscal Code. 

(18) After the delivery has l)een effected and after the corresponding 
protocol has been added to the flies, the authority that effected it will 
issue to the colonist or cultivator a certified copy of the decision of final 
adjudication and of the protocol of delivery, which copy after being duly 
recorded constitutes a legitimate title of property (articles 932 of the 
Fiscal Code, and 2652 and 756 of the National Civil Code). 

(19) After the formaUties preceding have been compUed with, the doc- 
uments will take the course determined in the final part of subsection 
12 of this circular. 

For the rest I call your attention to the provisions of executive decree 
832, pubhshed in the Official Gazette 6230. 

Yours respectfully, 

F. Angulo. 

(Published in 6230-1882 of the Off. Gaz. & reprod. in 543-1893 of the 
Off. Register.) 



309 



V-IHIOUS RESOLITIOXS SHOWIXG THE OPERATIOX OF THE 
L.\XD LAWS FOREGOING. 

Resolution ox Uxapfropkiated Lands. 

Secretary of the Treasukt, Section 3. 
Depaktment of Unappropriated Lands. 

Bogota, Julj^ 28, 1894. 

In order to settle the points consulted about in the pre%-ious promemoria 
it is hei'ewith considered: 

First: That, inasmuch as the denouncement of unappropriated land is 
the basis of all further administrative proceedings, beai-ing on their adjudi- 
cation, the former must contain the precise and exact statement of the 
number of hectaies solicited, in compliance ^"ith article 883 and 912 of 
the fiscal code, for the pm-pose that the denouncement ma)' have the char- 
acter essential for a document attributed thereto bj' articles 931 and 944 
of the same code. 

Second: Inasmuch as the promemoria of denouncement must contain a 
minute description of the parcel of land or of the zone which is desired to 
be obtained, a description wliich, as guai-antee of the rights of tliird persons, 
is pul^lished by means of official notices, article 914 of the same code pro- 
%ides that the demarcation expressed in the priman,- petition should cor- 
respond or conform itself by an exact coincidence vn.t\\ that expressed b}' 
the surveyor in the respective plan. 

Third: Inasmuch as therefore tlie denouncers of unappropriated lands 
are obUged to determine ■s\ith certainty from the day on wliich the petition 
is submitted to the respective official, the number of hectares which is 
sohcited, and -nhich must correspond wath the titles presented, it is corre- 
lativeh' deduced that in the denouncement or primarj- petition of adjudi- 
cation there shaU be expressed as nearly as possible the boundaries within 
which the land to be adjudicated is comprised, and further that it is incor- 
rect to indicate in the denoimcement a demarcation covering a zone or 
region considerably larger than the one wliich is petitioned for, which, on 
the other hand, would give rise to fraud, and would interfere -n-ith the rights 
of other indi^-iduals to denounce and petition the adjudication of unappro- 
priated lands in the same zone or region to the prejudice of the government, 
of agricultural industrj- and of colonization. 



310 

It is therefork resolved 

First: Between two denouncers of whom the first has not met the legal 
formalities of which mention is made above, denouncing on the contrary 
a zone larger than that covering the hectares which is to be adjudicated 
to him, while the second although he has effected his denouncement sub- 
sequently has complied with said formalities, the latter shall be evidently 
preferred, and not only that, but the denouncement of the first party shall 
be rejected as infringing the law. 

Second: According to the doctrine laid down, it is also evident that the 
denouncement which fails to conform to the provisions of the law shall 
be rejected as of no value, in any stage in which the documents necessary 
for the adjudication may be from the very moment in which the respective 
official should find e\adence of this lack of conformity with the legal pro- 
visions. 

To be published. 

For the Minister. 

The Assistant Secretary, 

JUSTINIANO CaNOIST. 



Promemoria on Unappropriated Land, and Resolution. 
To His Excellency the Secretary or the Treasury, Bogota: 

I have petitioned the Gobernacion of this department for an adjudica- 
tion in the Sierra Nevada de Santa Marta, and I supplicate Yom- Excel- 
lency that you deign to decide whether any other person may occupy for 
cultivation any part of these lands, comprised in the area denounced and 
petitioned for in adjudication. 

The case to which my inquiry refers has not come about as yet, but I 
have good reason to fear that it is to occur, already in the next spring, 
when perhaps the adjudication has not been terminated as yet. It is not 
superfluous to inform Your Excellency that the denouncement and the 
corresponding notices were published during the term prescribed by law, 
and that no opposition has presented itself, as in fact no one could present 
such. 

I am Your Excellency's obedient servant, 

Manuel D. Granados P. 
Santa Marta, September 7, 1894. 



311 

Office of the Secretary of the Treasury, 
Section 3. Department of Unappropriated Lands. 
Bogota, October, 10, 1894. 
Inasmuch as the land which the petitioner says that he has denounced 
is unappropriated land, as long as it is not adjudicated, any person or 
persons may establish cultivations thereon, but since it is required by the 
corresponding provisions that the cultivators in order to obtain a right to 
adjudication must occupy and cultivate it for four years, the mere fact of 
the present occupation does not constitute any right in favor of the occu- 
pants, if at the time of adjudication of the land to the petitioner this re- 
quirement has not been met. 
Communicate and publish. 

The Assistant Secretary in Charge of the Office, 

JusTiNiANo Canon. 

{Official Gazette, No. 96 11.) 



R15S0LUTI0N REFERRING TO THE PRECEDING PrOMEMORIA. 

Office of the Secretary of the Treasury, 
Section 3. Department of Unappropriated Lands. 

Bogota, November 23, 1904. 

And whereas: 

First: Alinea 8 of article 1 of decree number 832 of 1884 says: 
"No cultivator shall be permitted to sell the land that he possesses as 
cultivated land except after obtaining the title of property issued to him 
by the secretary of the treasury of the union, a title which shall not be 
definitive except when the cultivator proves that after having obtained it 
he has not abandoned the land for a time of not less than four years con- 
formably to the provisions in article 8 of law 61 of 1874. In this case the 
purchaser acquires the same rights and obligations as the vendor possesses, 
being therefore held to continue the cultivation of the land, because if he 
were to abandon the tillage during the four years of which article 8 of the 
law 61 of 1874 already mentioned speaks, the land shall revert to the na- 
tional domain. 

"If the cultivator should sell the improvements before obtaining the title, 
the purchaser is held to continue the cultivation of the land, in order that 
any rights may he recognized for him, conformably to the provisions already 
established." 



312 

Second: And whereas the permanent cultivation for four consecutive 
years at least, and the building of a dwelling-house on the land is that 
which constitutes the right to the adjudication, the person who, without 
having obtained the latter, sells the improvements, loses this right, because 
the sale of the cultivation is equal to the abandonment thereof, before 
obtaining the definitive title, in which case the purchaser of the improve- 
ments is substituted for the vendor, as regards the obligation which the 
vendor had to continue the cultivation, and also as regards tlie right to 
obtain the adjudication of said land, after the fulfilment of the other for- 
malities prescribed by the corresponding provisions. 

Now THEREFORE BE IT RESOLVED, In virtuc of the provision tran- 
scribed, and of the proper interpretation of the other legal provisions on 
the concession of rights to cultivators of unappropriated lands, this ministry 
is of the opinion that tlie latter can indeed sell the plantations or improve- 
ments as fruit of their work, before having obtained the adjudication, but 
that they cannot reserve for themselves the right to the land, and still less 
to sell to a third party a presumed right as is that of adjudication of the 
land, a right which passes over to the purchaser of the cultivations and 
improvements because these latter, maintained and enlarged during at 
least four years, are those which give to the cultivator of unappropriated 
land the right to have issued to him the title of property of that tract on 
which he may have estabUshed himself, a title which is constituted by the 
definitive adjudication by means of the formalities prescribed therefor. 

Communicate to the party interested, and pubhsh tliis resolution. 

The Assistant Secretary in Charge of the Office, 
JusTiNiANO Canon. 
Official Gazette 9645. 

FORMS FOR PROCEDURE ILLUSTRATING OPERATION OF 
LAND LAWS. 

1. Of the Promemoria for Making Investigation de Nudo Facto. 

Mr. (Judge, Alcalde, or Corregidor op ) : 

I, N. N., of age, and an inhabitant of this (or such and such a ) 

district, petition you herewith respectfully that you summons to your 
office Messrs. N. N., N. N., N. N., N. N., and N. N. (there must be at least 
five deponents) and that you cite and cause to be present the correspond- 
ing agent of the attorney-general, taking thereupon their affidavit on the 
foUowing points : 



313 

1. Age, domicile, and general information required by law as to their 
relation or non-relation to me. 

2. Whether they know for certain, and from what cause, that the tract 
of land known by the name of (if it has any) situated in the 
place of section of Corregimiento of of 

jurisdiction, and bounded by the following boundaries : (Follow the 
boundaries). 

3. If they know for certain, and for what cause, that within the said 
tract of land I have estabhshed a dwelling-house and permanent cultiva- 
tions (or alternate) such as (specify the kind) to an extent of 
hectares, approximately. 

4. If they know for certain, and for what cause, that for years 
I am established on said tract of unappropriated land, without ever having 
abandoned it (time of occupation must not be less than four years). 

5. If they know for certain, and for what cause, that the said tract of 
unappropriated land is not destined for the nation, for any determinate 
public use. 

6. If they know for certain, and for what cause, that the tract of un- 
appropriated land involved is remote more than a myriameter from the 
lines of projected railroads or railroads under construction, and 

7. Whether they know for certain and from what cause that within this 
tract of unappropriated land there are no mines or rock salt, precious 
stones, guano, or others, the ownership of which is reserved to the nation. 

I also petition you that in every one of the affidavits you comply with 
mandate of article 633 of the judicial code, and at the end of the protocol 
with, the requirement of article 596 and 599 of the same code, ordering 
that everything be returned to me. 

(Here the date.) 
Mr. (Alcalde, Judge, etc.). 

(Here the signature.) 

(In the promemoria drawn up for the summary investigation referred to 
above, for denouncing unappropriated land, by way of title of concession, 
the questions under 3 and 4 will not be put.) 

2. Promemoria for Denouncing Land. 

To THE Honorable the Governor of the Department of : 

I, N. N., of age, and an inliabitant of this district (or some other), re- 
spectfully submit to Your Honor, that at the place of section 



314 

of corregiiiiiento of of this municipal district (or 

some other) province of of this (or some other) department, 

there is some unappropriated land, known by the name of , 

which is comprised within the following boundaries (follow the boundaries) ; 
and as I wish to acquire the property thereof as cultivator or colonist (or 
in exchange of title as the case may be) denounce it before you in legal 
form. 

The tract which I denounce amounts approximately to hec- 

tares, of which about are cultivated by me, and I would state 

that the cultivations which I have there consist of (specify kind). 

(In the projnemoria where unappropriated land by dint of a title ex- 
changed is denounced, it will read : The land which I denounce amounts to 
hectares, equal to the number covered by the title or titles 
which I attach.) 

The land which I denounce, bounded as I have said, adjoins the follow- 
ing properties (adjoining owners) : 

I enclose in tins denouncement the protocol de nudo facto, made up of 
the depositions of five capable and fit witnesses, by which I prove the 
character of the land as unappropriated, and the other conditions which 
the laws and decrees on the subject demand. 

(When the land is denounced in exchange of title, it will be added: And 
territorial certificates of hectares each (express series 

and numbers of the certificates). 

Therefore, my denouncement havmg been made in compliance with the 
provisions of the law, I supplicate your Honor that you deign to admit it, 
and order that it shall be given legal force. 

(Here the date.) 

To the Governor 

(Here the signature). 



PEOCEEDINGS for the Make-up of Documents by Means of which Un- 
appropriated Land is Denomiced and Mode of Giving them the Proper 
Course in the Government Offices. 

Measures for Preparing the Denouncement. 

The person or company that would like to bring about the adjudication 
of some tract of unappropriated land will submit a promemoria to any 



315 

of the judiciary or administrative officials, except the Prefects of the 
Provinces, in which they petition that in presence of the corresponding 
representative of the Ministry of PubHc Works five individuals, at least, 
whose Christian and family names must be given, shall be heard on the 
following subjects: 
The deponent must state : — 

(1) His age, domicile, general information about his person as demanded 
by the law, such as relationship to the petitioner, etc. 

(2) That which is known to him for certain, having seen it, having heard 
it say so, or from any other cause, that the tract of land known under 
the name of situated 

. (in such and such a place) part 
(such and such) of the jurisdiction of (such and 

such a township), is not appropriated. 

If the boundaries be known, they must be indicated (circular No. 94 of 
1884, paragraph 1). 

(3) That he knows for certain (source of information) that within the 
tract of land referred to the petitioner has a dwelling-house and culti- 
vated farmlands, specifying the kind of every one of them, covering 

(so and so many) hectares, approximately (circular No. 94 
of 1884, paragraph 14). 

(4) That he knows for certain (source of information) that 

(so and so long ago) the 

petitioner or soUcitant first settled in that tract of land, and that since he 
never^has abandoned it. The time of occupancy of the tract of land must 
not be less than four years (see Resolution of the Secretary of the Treasury 
of the 10th of October, 1894). 

(5) That he knows for certain (source of information) that the said 
tract of land is not destined for the nation nor any public use of prede- 
termined character (section I. of the circular). 

(6) That he knows for certain (source of information) that the tract 
of land unappropriated, involved here, is removed more than one myria- 
nieter from the tracings of the projected railroads or railroads under con- 
struction (paragraph 1 of the circular), and 

(7) That he knows for certain that in the said tract of land there are 
no mines of rock salt, precious stones, guano, or others the ownership of 
which the Nation has reserved for itself (articles 1116, 1117, 1121, and 
1126 of the Fiscal Code). 



316 

In the affidavits accompanying the petition for adjudication of unap- 
piopriated lands in exchange of a title of concession, items 3 and 4 need 
not be considered. 

The official who receives the depositions must in every one of them 
meet the requirements of article 633 of the Judicial Code, and at the end 
of the statement the requirements of articles 596 to 599 of the Code (para- 
graph 1, aUnea 4 of the circular). 

Denouncement. 

After the information de fucio nudo (bare fact) has been obtained, the 
petitioner proceeds towards making the denouncement by means of a 
promemoria addressed to the governor of the province, in which said land 
will be denounced as being unappropriated and a petition for their adjudi- 
cation will be made, wherein it must be stated by which of the means, by 
which they can be petitioned for, the petitioner solicits their adjudication, 
whether as a cultivator or in exchange for titles of concessions. 

There will be stated, moreover: — 

(1) The name by which the tract of land which is denounced shall be 
known. 

(2) The district, section, corregidor's district, and province wherein 
they are. 

(3) The general boundaries within which the tract is contained. 

(4) The number of hectares (if the amount is not known definitely, then 
the approximate area), specifying the area cultivated and that not cul- 
tivated, stating of what kind of cultivations the former consists. 

(5) The lands which adjoin the tract and other indications which may 
help to give a clear idea of the tract (paragraph 2 of the circular). 

In the i)etitions which are submitted by way of change of title of con- 
cessions, only that is excepted from the above which refers to the dwelling- 
house, cultivated land, and time of occupancy; such a promemoria must 
contain, aside from the summary information attached thereto, the titles 
of concession, equal in number of hectares to the ones solicited for award 
(paragraph 2, alinea 1 of same circular). 

Wlien presenting to the government (Treasury office) the promemoria 
referring to the denouncement, accompanied by the above-mentioned docu- 
ments, these will be examined, and, if it is found that thej' are made up in 
proper form, the government will issue through the office of the Secretary 
of the Treasury a decree pursuant to which the denouncement will be 



317 

declared as having been admitted, and in the official gazette of the depart- 
ment, and at the expense of the denouncing party, a decree will be pub- 
lished where the denouncement made wiU be pubUshed (paragraph 3 of 
the circular). 

In that decree the name of the land which is solicited for award is ad- 
vertised, Ukemse its boundaries, the names of the owners of the adjoining 
lands, and all other indications by dint of which the land can be clearly 
recognised (paragraph 3 of the circular). 

After the decree referred to has been pubhshed, and after the number 
of the gazette in which it appeared has been marked on the files, the same 
office will issue another decree whereby other decrees of the same tenor 
as the one pubhshed will be caused to be hung up at accessible parts of 
the said Treasury office and of the Alcaldia of the district where the land 
is situated. If the land should reach over into the territory under the 
jurisdiction of another district or corregimiento cCorregidor's district), 
also in the offices of that Alcalde or Correg?dur, as may be the case, 
another decree like the preceding ones must be hung up. 

These decrees must remain hung up in the said places for tliirty con- 
secutive days (paragraph 3 of the circular). 

Opposition. 

If within the term during which the decrees remain thus exhibited, any 
opposition is raised, the term of exhibition shall be allowed to properly 
expire. Wlien that term has expired, when the decrees exhibited have 
been taken down and after they are returned to the Treasury office, 
they will be added to the files, and a decree is dictated in which the oppo- 
sition is declared as having been admitted (always provided that said oppo- 
sition has been raised before the term during which the decrees were 
exhibited has expired), and a notification thereof is ordered to be dehvered 
unto the denouncing party, a fair time being allowed to the latter to file 
a reply, and for this purpose the docket of the denouncing party, as well as 
the documents and petitions of the opponent submitted by the latter 
for the purpose of substantiating the opposition, shaU be at the disposal 
of the denouncing party. 

After the term stated in the above notification has expired, a reply has 
been filed, and after all the documents have been returned to the office 
of the Treasurer, the latter will cause the matter to be decided in the min- 
isters' conseil (council), where a resolution will be taken that will be com- 
municated to the parties in question. 



318 

If an appeal is taken from the said resolution by one of the parties, all 
the documents will be transmitted to the Circuit Court which has the 
competency over the said land, and the presiding judge of that court will 
decide the controversy (paragraphs 4 and 14 of the circular). 

After the matter has been decided upon by the said judge, this official 
will return to the Secretary's office the decision basing on which a decree 
will be issued wherein the decision of the court shall be ordered to be carried 
out. 

Demarcation or Survey. 

If the decision of the court does not nullify the denouncement made, 
the petition will be granted, and, since the granting in all cases involved 
the demarcation or the survey of the land, the decree will take the fol- 
lowing shape: — 

If the land which is petitioned for has been denounced under the claim 
of cultivator, and does not exceed one hundred hectares, the area will be 
defined by means of demarcation; but if it does exceed one hundred hec- 
tares, or if it be denounced under the claim of change of title of concession 
(in this case even if it does not reach one hundred hectares), the area 
will be defined by survey (paragraphs 4 and 15 of the circular). 

In the first case, that is to say when the defining of the area is to be 
effected by means of demarcation, a decree will be issued wherein the 
Alcalde of the district where the land is situated is required to bring about 
the demarcation, accompanied by the municipal deputy and by two experts 
appointed and qualified by the Alcalde previous to the act, the said demar- 
cation to be effected entirely in compliance with the provisions of the 
Executive Decree 832 and circular 94 of 1884 (paragraph 11 of the cir- 
cular) (see circular 574 of the government of Tolima, 1890). 

In the second case, that is to say when the area of the land is to be de- 
fined by survey, the decree issued will appoint a surveying engineer who ■ 
must be of recognized integrity and skill. If the Treasury should find it 
difficult to appoint a surveying engineer, as the land is in another district, 
and it is not easy to know which engineer can be appointed, then the 
decree will instruct the Alcalde of the district where such lands are situated 
to appoint the engineer, to qualify him, and to make with the solicitant the 
necessary surveying contract, which for the fulfilment of the obligations 
of the surveying engineer must meet the requirements of section 9 of 
Decree 832, provisions 4, 5, 6, and 7 of the circular 94, both of 1884; 
the decree of the Secretary of the Treasury of the 15th of June, 1890, 



319 

the circular of the same office of 1896, number 1, and the decree of the 
same office of the 3d of April, 1897. 

Moreover, it will be subject in all cases to the approval of the government 
(section 4 of circular). 

A record will be made of the carrying out of the demarcation, and said 
record must contain: (1) name of land, situation, section, corregidor's 
district, and general district where situated; (2) name of cultivator; (3) 
area of land demarcated; (4) the boundaries within which the land is 
comprised, which also must be marked on the land itself in as clear a 
manner as possible, so as to avoid subsequent disputes between the cul- 
tivators themselves or with the owners of the adjoining land ; (5) whether 
there are or not cultivators that have settled on the same land demar- 
cated; and finally all the data and details concerning said act. 

This document must be signed by the Alcalde in charge, the party inter- 
ested, the expert, and the person acting as Secretary (article 6, alinea 5, 
of article 1, Decree 332 of 1884). 

If there are any cultivators that have settled within the boundaries of 
the land demarcated, the commission wiU survey and define by bounda- 
ries, both on the land itself and in the corresponding act, by means of 
clear and precise boundaries, their lots, specifying their extent etc. (ar- 
ticle 5, Decree 678 of 1890). 

The same proceedings will be followed by the surveying engineer when 
surveying the land (ahnea 5, article 1, of the Decree 832, and 4 of Decree 
678 of 1890). 

After the Treasury has received again the docket with the record of the 
demarcation effected, or with the plans and statement of the engineer, 
which must be signed both by him and by the party interested or his 
legal agent, the work will be examined, and, if it is found that any changes 
should be made therein, they will be returned to the commission or the 
surveying engineer, as the case may be, in order that such corrections be 
made, and the changes needed will be enumerated in the order in which 
the return of all the documents is ordered (paragraph 16 of the circular). 

Adjudication. 

After such defects are put in order, and the documents are returned to 
the Secretary's office, a decree will be issued whereby the provisory adjudi- 
cation of the land is decreed, and where it is ordered that the correspond- 
ing document, together with a copy of the plan made up by the surveyor, 
be submitted to the Ministry of the Treasury. Both plans must be 



320 

authenticated by the Governor of the respective department, and his 
signature again must be authenticated by the Secretary of the Treasury 
{query: presumably by Secretary of the Treasury the departmental Sub- 
treasury is meant) (paragraphs 9 and 16 of the circular, and alinea 6; 
article 9, of the Decree 832). 

Upon retvu'n of the files from the Ministry of the Treasury the orders of 
said authority are complied with and carried out as indicated in tlie decree 
issued by it. If the same calls for a definite adjudication of the land, tlie 
Secretary of the Treasury will cause this decree to be communicated to 
the party interested, and tlie Alcalde of the respective municipality will 
be instructed to effect the deliA^erj^, provided that the adjudication is made 
under the head of Cultivator. 

If it is pursuant to an exchange of titles of concession, the decree of 
the Secretary of the Treasury will communicate to the party interested 
the ci. ^tents of that of the Ministry of the Treasury, leaving at the dis- 
posal of the said interested party the copy of the plan of the land which 
will be in the hands of the Secretary's office, in order that he proceed to 
petition for the delivery and possession of the land before the judge of 
the Circuit Court within the jurisdiction of whom the tract adjudicated 
is situated, in compliance with article 929 of the Fiscal Code (Decree 
27 of 1897). 

Delivery. 

The delivery of the land will be effected pursuant to the case in hand 
by two officials, viz., the Alcalde of the district where the land is situated 
or by the judge of the Circuit Court of the same district (article 932 of 
the Fiscal Code, 1 of the Decree 27 of 1897, 1 of Decree 678 of 1890, and 
decree of the National Government of the 31st of October, 1898). 

It is effected by the Alcalde M^hen the adjudication of the land is made 
to the party as Cultivator, whatever may be the number of hectares ad- 
judicated, and by the judge of the Circuit Court Avhen the adjudication 
is by way of exchange of titles of concession, whatever may be the num- 
ber of hectares adjudicated (Decree 27 of 1897). 

If for some reason or other, the judge of the Circuit to whom it falls 
to do so cannot be present in person to effect the dehvery, he can instruct 
the municipal judge of the district to do so (Decree 27 of 1897). 

The delivery of the unappropriated lands adjudicated in behalf of any 
titles will be effected for the boundaries indicated in the decree of the 
Ministry of the Treasury by which the same definitely adjudicates the 



321 

land. When tbe delivery is effected pursuant to a change of title of con- 
cession, the copy of the corresponding plan must be exlribited (Decree 
678, article 2, 1890). 

In the record made of the act of deUvery it must be stated whether or 
not colonists have settled within the confines of the land delivered, and 
the act must be signed by the officiating official, his secretary, the party 
interested, and by the State Attorney of the Circuit, provided that the 
adjudication be in exchange of titles of concession; also the private per- 
sons present, and who care to do so, can sign it (articles 1 and 3 of Decree 
678). 

If at the act of delivery of the land any oppositions should be raised, 
when the land has been sohcited for adjudication by way of exchange of 
titles of concession, the judge will meet the requirements of article 8 of 
the Decree 678 of 1890. If it has been for a "Cultivator," it will not be 
listened to; but the official present at the delivery is bound to note down 
in the record made of the act the name or names of the cultivators settled 
within the dehvered land, the extent of cultivation made by them, and 
the boundaries thereof. This must also be done by the judge in his case 
(article 4, Decree 678, and Decree of the Ministry of the Treasury of 
June 5, 1893). 

After the delivery of the land has been effected, and after the act bear- 
ing thereon has been returned to the Secretary of the Treasury, the act 
of possession will be examined to make sure whether the delivering oflicial 
met all the requirements of the law on the matter. 

If any essential irregularity is noted which has occurred in the act of 
delivery, the documents will be sent back to the official in chai'ge of the 
delivery, indicating on the corresponding order of return the defects that 
exist for correction thereof, and, if the irregularity took place in the act 
of dehvery, he will repeat that. 

If the record of delivery shows no defect, the files are ordered to be sent 
to the Ministry of the Treasury to be deposited in the archives of that 
office (paragraphs 12 and 19 of circular 94). 

After the delivery has been effected of such land, the official in charge 
thereof will issue to the party interested the corresponding title, according 
as to how the adjudication has been made, that is: if by way of claim 
as Cultivator, a legalized copy of the act of adjudication (definite adju- 
dication) ; if by waj' of exchange of titles of concession, and if the party 
interested so demands it, a pubhc deed will be issued by the former in 
the form prescribed by article 931 of the Fiscal Code. 



322 

The files must contain a statement to that fact (paragraphs 12 and 13 
of the circular 94, 1884). 

Feks. 

In the acts of demarcation and dehvery of land unappropriated, adjudi- 
cated on any title, the officials are only entitled to a carriage that may 
be required for conveying them to the place where the act takes place, 
but not to any other fees: the experts will receive from the party inter- 
ested the fees prescribed in the Judicial Code (circular 574 of October 15, 
1890, issued by the Secretary of the Treasury of the Department of Tolima). 



323 



[Translated from N° 11, 1900, of Petermann's "Geogra- 
phische mitteilungen."] 

professor EDWARD SELER, PH.D. 

THE BOUNDARY DISPUTE BETWEEN THE REPUBLICS 
OF COSTA RICA AND COLOMBIA. 

(With Map) 

Everybody will admire the energy and persistence with which the Span- 
iards, the conquerors of the New World, endeavored to colonize, Christian- 
ize, and, above aU, exploit agriculturally and develop the vast tracts of 
land discovered by them. At the same time one will understand why only 
in a few privileged territories the success was quick and thorough, while 
other territories remained for a long time unexplored and unconquered, 
some of them, in fact, remaining so to the very end of the Spanish colonial 
sovereignty. Owing to the fact that the opening up of these remaining ter- 
ritories was at times tried by one, at another by some one else, disputes 
between the different districts of administration were but a natural outcome, 
and in a certain way the government felt the inabHity of solving the diffi- 
culties, not only because it found it difficult to bring about a correct de- 
marcation in territories unknown, but still more so because it was not always 
easy to ascertain in how far the crown had already been bound by previous 
decrees. 

And from the old Spanish administration districts the dispute was 
transmitted to the independent State units which became the successors 
and heirs of the former. In this manner, since the establishment of the 
American republics, boundary disputes have appeared everywhere, which 
were settled only gradually and are now more frequently settled by arbi- 
tration. 

Such a dispute existed until a short time ago between Costa Rica and 
Colombia, which has its origin in similar relations of the litigating parties, 
but which became particularly complicated here by the fact that in the old 
designations of the coast tracts and the territories belonging thereto there 
prevailed a great uncertainty, and that the same name was formerly used 
in a much more comprehensive meaning than afterwards. In order to 
correctly understand the quintessence of the subject of contest, some 



324 

historical determinations become necessary. The stretch of coast in ques- 
tion belongs to the parts of the continent of Central America that have 
become known earliest. Columbus had arrived on his fom-th trip, 1502, 
at the opening of the great bay which he called "Carambaru," while other 
historians call it Cerabora, Ceraboro, Zorobaro, and which later, after its 
discoverer, was designated as Bahia de Almirante, but which is also known 
by the name of Bocas del Drago, Boca del Toro. Along the forest-covered 
banks the ships whose rigging swept the overhanging branches had safe 
entrance in any weather, and, what was of more importance still to 
Columbus, he saw here for the first time on the naked chests of the natives 
large ornaments of fine gold, and heard of a land where the gold was mined, 
and which he really found, about twenty-five leguas further to the east, 
and which he believed to be the Asiatic continent, "the gold mines of the 
province of Ciamba, which I was seeking." It is the name of this gold 
country, Veragua, which in the controversy between Costa Rica and 
Colombia plays a very important part. 

It had not been possible for Columbus to enter with his vessels the river 
of Veragua, but in the mouth of a neighboring river, which he called Santa 
Maria de Belen, he found safe anchorage, and had been able to visit from 
there the gold mines which were not further than eight leguas removed 
therefrom. Full of great hopes he rettu-ned to Spain, but there he found 
that his great protectress Isabella, the Catholic, had died, and her husband, 
Ferdinand, was not willing to satisfy the extensive claims of Columbus. 
His son and heir, Diego Colon, instigated in 1508 a suit against the crown, 
which was carried along for many years undecided. In the meanwhile, 
there was found in the person of Felipe Gutierrez, son of a royal treasurer, 
Alonzo Gutierrez, an enterprising man who was willing to take charge of the 
colonization and opening up of the land. The widow of Diego Colon, 
Maria de Toledo, consented thereto, and thus with her consent, and by a 
royal ordinance of the 24th of December, 1534, Felipe Gutierrez was ap- 
pointed governor of the Province of Veragua, and in the capitulation drawn 
up on the same date this province was defined more closely as the territory 
between the ends of the province of Castilla del Oro, or Tierra Firma, and 
the Cape Gracias a Dios, that is, a stretch of coast was turned over to him 
which is now distributed amongst the three republics Colombia, Costa Rica, 
and Nicaragua. And, inasmuch as the southern demarcation could be doubt- 
ful, the governor of the Tierra Firma was instructed on the 14th of July, 
1536, by a special ordinance, "that if the land of the Cazique Urraca (that is, 
the central plateau of the Isthmus, at the southern slope of the watersheds) 



325 

belonged to the territory of the Province of Veragua, no conquest nor coloni- 
zation and no barter should be attempted." 

The expedition of Felipe Gutierrez miscarried completely. When the 
news thereof came to Spain, the heirs of Columbus and the crown agreed 
to leave their dispute to the arbitration of Cardinal Garcia de Loaysa, 
President of the Council of the Indies. According to the arbitration deci- 
sion of the latter, which was accepted by the king, by an order of the 
19th of January, 1537, the heirs of Columbus were to be compensated by 
the island of Jamaica, and a territory of twenty-five leguas square, in the 
province of Veragua, which, together mth the ducal title, was transmitted 
to them as the hereditary property. The surveying of the twenty-five leguas 
in the sqviare is minutely prescribed in the ordinance. They were to start 
at the river of.Belen, which was included in the territory, and were to be 
measured on the same degree of latitude to the western part of the Bay 
of Ceravaro (Bahia del Almirante) and beyond, if necessary to make up 
the twentj'-five leguas. From the terminal point, twenty-five leguas were 
to be measured on a meridian from north to south, and also at the starting 
point at the Rio Belen on the meridian of this river, and from the end 
of this latter twenty-five leguas, the southern side of this square was to be 
measured again on a degree of latitude to the end of the twenty-five leguaS 
measured on the meridian of the Bay of Ceravaro. 

Thus from the vast territory of the Province of Veragua, as it had been 
defined in the above-mentioned document, a small piece was cut out as 
the Duchy of Veragua. The rest was, by ordinance of the 2nd of March, 
1537, put under the administrative district of the Tierra Firma or Castilla 
del Oro, but with the especial addition "tanto quanto nuestra merced e 
voluntas fuere," or "as long as we are gracious and willing," — in other 
words, as long as we shall see fit. 

Therefore two Veraguas existed thenceforth. The Duchy, which is also 
mentioned as the Ducado de Corabaro, which was the private property of 
the Colon family, and the remaining Veragua, also shortly called VeraguaJ 
over which the king exercised immediate sovereignty, and which for the 
time being he had transmitted to the governor of Panama for adminis- 
trative purposes. The opening up of the former, the duchy, had been trans- 
ferred in 1539, by instructions of the chief of the Colon family, to a Con- 
quistador just returned from Peru, Hernan Sanchez de Badajoz. 

The conquest and colonization of the latter, that is the royal Veragua, 
was also to have been transferred to the same Hernan Sanchez de Badajoz, 
such having been the intention of Dr. Robles, who at that time was Prfesi- 



326 

dent of the Audiencia of Panama, and whose son-in-law, Hernan Sanchez 
de Badajoz had become in the meanwhile. This commission which Dr. 
Roblez thought he was justified in giving to his newly gained son-in-law 
Hernan Sanchez de Badajoz was, however, considered by the king as an 
infringement on his rights, and was annulled. The conquistador who had 
penetrated from the mouth of the Tarire River into the valley of the 
Cazique Coaza, to Corotapa, and who had founded there a colony in the 
midst of a dense population of Indians, was recalled. 

At the court of Madrid there was at that time an enterprising man, 
Diego Gutierrez, another son of the royal treasurer, Alonzo Gutierrez, a 
brother of Felipe, who in 1536 had directed the unsuccessful expedition 
in Veragua, and to him the king conceded by a decree of the 16th of Sep- 
tember, 1540, the conquest of the remaining parts of Veragua which were 
subject to the royal administration, from the Bay of Carabaro as far as 
the Cape Camaron. In spite of the objection of the governor of Nicaragua, 
the right was also conceded to him to occupy the land at the " Desagua- 
dero" as far as fifteen leguas below its outlet out of the large fresh-water 
lake (Lake Nicaragua). The capitulation which was concluded on the 
29th of November, 1540, with Diego Gutierrez, is interesting for the reason 
that here, for the first time, the name of Cartago is used for that part of 
the old province of Veragua which remained after the elimination of the 
duchy of that name, while in the papers referring to the undertaking of 
Hernan Sanchez de Badajoz the name of Costa Rica appears for the first 
time for the same territories. 

The expedition of Diego Gutierrez was unsuccessful. To be sure, he 
succeeded in 1543 in getting a foothold at the mouth of the Sueri River, 
but he was not able to retain the colony there for any length of time, and 
when he sought for points of support further inland, he was attacked by 
the Indians at Tayutic where he and twenty-six of his companions fell. 
The right to continue the enterprise was reserved for his son and heir, 
but was finally suspended indefinitely as far as the execution was concerned. 

As here, in the Royal Veragua, the enterprises were unsuccessful, so it 
happened also in the duchy of Veragua, where the enterprises started by 
the Colon family since 1546 had no success whatever. A grandson of the 
discoverer, Francisco Colon, died in battle. Finally, in 1556 the family 
ceded the unprofitable possession again to the crown, against a pension of 
three thousand ducats. Thus the two Veraguas had again become the 
immediate possessions of the king, but they were not combined into one. 

The duchy, which retained the name of Veragua, was left, under the 



327 

supervision of the Audiencia of Panama, for colonization to the citizens of 
Nata, a Spanish city situated on the Pacific coast just at the far side of 
the duchy. The heutenant-governor of this city, Francisco Vasquez, ob- 
tained in connection therewith considerable results. He penetrated in 
1558 as far as the watershed, discovered the gold mines of Turula, and 
founded, on the northern sea, the colony of La Concepcion, which since 
then bears its name therefrom. The colonization of the other part of the 
old province of Veragua, which it became since then customary to call 
Nueva Cartago, or Costa Rica, was also started successfully and from the 
Pacific coast, from Nicaragua. In 1560 Juan de Cavallon was given the 
necessary authorization by the Audiencia of Guatemala, and by a letter 
of the 15th of February, 1561, the king consented thereto. Juan de 
Gavallon penetrated from Nicoya into the territory of the Guetar, and 
founded there the city of Castillo de Garci-Muiioz. The simultaneous 
expedition of Father Juan de Estrada, who, on instructions from Juan de 
Cavallon, was to descend the "Desaguadero," and was to found a city of 
the name of Castillo de Austria, at the port of San Geronimo, on the coast 
of the northern sea, failed absolutely. 

More successful than the former were the explorations of Juan Vasquez 
de Coronado in the subsequent years. He subdued on the Pacific coast 
the villages of the Couto and Boruca, and founded in the warm and fertile 
valley of the Guarco the city which, after this province, was called Car- 
tage.- His captains, Peyerra and Diego de Trejo, penetrated from the 
Pacific side in the direction of Nata as far as the Llanos de Chiriqui, Cia, 
Xarixava, and Yado. And he himself, with his entire forces, moved from 
Boruca over the central cordillera, into the Valle del Guaymi, which opens 
towards the Atlantic side, and is populated by numerous Indian villages. 
This VaUe del Guaymi is identified with the valley of the Cazique Coaza 
which Hernan Sanchez de Badajoz had reached. From the Valley del 
Guaymi he came into the provincia del Duy, which is situated not very 
far from the islands of Zorobaro, that is, the Bahia del Almirante, and he 
then returned to Cartago by way of Tariaca, Tococi, Tuyotique, and Atirro. 

Similar distant expeditions were undertaken by Perafan de Ribera,, 
successor of Vasquez de Coronado, and the successor of the former, Diego 
de Ai-tiega Cherinos, was authorized directly by the king to take possession 
along the coast of both seas as far as the boundaries of the province of 
Veragua, being instructed at the same time to found three Spanish cities, 
one at the Bocas del Drago, that is, on the Bahip, del vUmirante, another 
in the Valley of Guanco, and the third one (on the Pacific side) in the Prov- 



328 

ince of Garavito (capitulation of Philip the Second in El Paso, December 
1st, 1573). 

At the same time, however, the governors of Veragua who had their seat 
in Concepcion de Veragua made expeditions into the valley of the Guaymi, 
whicli they considered as l^elonging to their administrative district, or 
wanted to consider in that light, protesting at the same time against the 
further advance of Diego de Artiega. By a letter of the 30th of August, 
1576, the king was therefore forced to instruct the Audiencia of Guate- 
mala to ascertain to which administrative district the Rio del Guaymi,. 
the Bocas del Drago, and the Bahia del Almirante belonged. To be sure, 
we do not know whether the said Audiencia caused an examination to be 
made and what was the result thereof, but the fact is that in the year fol- 
lowing, not at the Bocas del Drago, but on the Guaymi River, Diego de 
Artiega founded the Ciudad del Artieda de Nuevo Reino de Navarro, which 
to be sure, like the other settlements in this tropical forest coast, was not of 
any lengthy duration. 

A lasting settlement and colonization of the country was only successful 
for the Spaniards in the valleys of the interior, lying in front of the foot 
of the northern transverse series of volcanoes. The eastern boundary 
districts, the forest • districts on the Bahia del Almirante as well as the 
Llanos at the Golfo del Osa always formed an unsubdued and unexplored 
territory which from time to time was invaded, sometimes from one side 
and sometimes from the other, by expeditions and missions, practically 
without success. Both the Gobernacion of Costa Rica and that of Veragua 
were able to refer to royal letters encouraging such work. On the Pacific 
side, on the whole, the Punta de Burica was maintained as the boundary 
of the sphere of influence between the Audiencia de Guatemala which was 
the superior of the Gobernacion of Costa Rica, and the Audiencia de Panama 
or the viceregal office of Santa Fe de Bogota to wliich up to 1773 (for the 
former) and subsequently thereto (for the latter) the territory of Veragua' 
was subject. 

This is also expressed on the map made by the governor Lorenzo del Salto 
in the year 1620, and it is this map of Veragua which Manuel M. de Peralta 
found in the Archivo de Indias and which is reproduced in the 19th volume 
of the Review of the Society: " Gesellschaft fuer Erdkunde in Berlin." 
On the Atlantic side, however, the governors of Veragua always claimed, 
for themselves the dominion as far as the river Tariri, while the authorities 
of Costa Rica have never ceased to consider as subject to their sphere of 
influence the Bahia del Almirante, and that more or less in its entire extent, 



329 

that is, about to the river Cliiriqui, or Calabebora, or the Jand situated 
in front of the mouth of the same, which in old doctmients is usually called 
the Escudo de Veragua. The Rio Chiriqui el Viejo (old Chiriqui River) 
which flows into the sea east of the Punta Burica, and the Escudo de 
Veragua, have also been proclaimed in the constitution of Costa Rica of 
January 21st, 1825, as boundaries against Colombia. A status quo which 
Colombia virtually recognized in the treaty concluded on May 15th, 1825, 
in Bogota, and ratified July 9th, 1826. Veiy soon, however, the Colombian 
govermnent showed the intention to secure for itself the valuable ports at 
the Bocas del Toro, and the districts at the Golfo del Osa or Golfo Dulce. 
By a resolve of the chambers of May 30th, 1836, a Colombian official .was 
placed on the islands of Toro. More extensive claims were eloquently 
insisted upon by the Colombian writer Pedro Fernandez Madrid. After 
repeated efforts had been made to bring about a boundary regidation by 
means of a treaty and after repeated trangressions, complaints, and counter- 
complaints had been made, it was finally agreed in the treaty concluded at 
San Jose on the 25th of December, 1880, that the controversy be submitted 
to an arbitrator, and in the additional convention concluded at Paris , January 
20th, 1886, Costa Rica proclaimed as boundaries claimed by it on the Atlantic 
side the Escudo de Veragua and the Rio Chiriqui or Calobebora and on the 
Pacific side the Rio Chiriqui el Viejo which flows into the sea to the east 
of the Punta Burica, while Colombia claimed on the side of the Atlantic 
the coast as far as the Cape Gracias a Dios, and on the side of the Pacific 
the opening of the Rio Golfito into the Golfo Dulce. Originally, King 
Alfonso XII. of Spain was chosen as arbitrator, but he died, however, in 
1885, By a new convention, concluded November 4th, 1896, and ratified 
January 5th, 1897, the President of the French Republic was definitely ap- 
pointed arbitrator. As is customary, the Costa-Rican-Colombian boundary 
controversy has called forth not only a series of smaller or larger polemic 
treatises, but also very profound studies which are of most extraordinary 
value for the history and geography of the territories in question. In 
connection with that we must mention above aU the archivistic studies of 
Manuel M. de Peralta, ambassador of the Republic of Costa Rica to the 
courts of Europe. 

In the polemic treatises enumerated in the note the boundary claimed 
by the Republic of Costa Rica, which in the additional convention of Paris 
January 20th, 1886, had only been determined by its extreme point, is de- 
fined more in detail as follows : From the Escudo de Varagua southward to 
the mouth of the river Chiriqui now so called flowing into the Atlantic 



330 

Ocean and following its course up stream as far as the source thereof at the 
Cerro Santiago, then along the watershed cordillera over the Cerro del 
Hornito Cumbre de la Playita and the Cerro de la Horqueta to the eastern 
principal source of the river Chiriqui Viejo and descending the latter to its 
mouth in the Pacific Ocean east of Punta Burica. 

More exactly the bovmdary claimed by Colombia is described as follows : 
From the mouth of the Rio Golfito in the Golfo Dulce, on the Pacific Ocean 
along a meridian which crossing the Rio Goto which flows into the Pacific 
Ocean, and the rivers Lari and Coen which are tributaries of the Tiliri or 
Sigsaula, and therefore flow towards the Atlantic Ocean, reaches the Tiliri 
or Sigsaula at 90° 33' northern latitude, and 85° 31' 30" western longitude 
of Paris (83° 31' 16" western longitude from Greenwich), and from 
this point in a straight line to the mouth of the Rio Saratiqui where it 
flows into the Rio San Juan, at 10° 43' northern latitude and 86° 15' 
western longitude of Paris (83° 53' 46" western longitude from Greenwich). 

The reasons which the representatives of Costa Rica adduce for the 
frontier claimed by them are based above all on the manner in which they 
measure the twenty-five leguas square, which, according to the royal 
ordinance of the 15th of January, 1537, were to be cut out of the province 
of Veragua for the Colon family, for even Costa Rica does not deny that 
these twenty-five leguas in the square — that is, the old duchy of Veragua— 
belonged at all times to the administrative district of Panama, and namely 
from 1773 to the viceroyalty of New Granada, wherefore they now must 
fall to Colombia. 

Pursuant to the text of the royal ordinance Peralta measures the twenty- 
five leguas on the latitude of the river of Belen, but he measures them on 
the TRUE latitude which passes entirely outside the Bahia del Almirante, 
south of it, and he reached the result that he fixes the western extremity 
of the duchy of Veragua at 8° 54' northern latitude, and 82° 6' or 82° 16' 
42" west longitude of Greenwich, according as to whether one allows twenty 
leguas or only 17i leguas per degree, the latter being the legu^ of Burgos. 
As against that Colombia asserts, and it seems justly too, that in the royal 
ordinance it had been said expressly that the boundaries of the duchy of 
Veragua were to reach to the western part of the Bay of Caravero (or Bay 
of Almirante) and, if necessary, beyond that; further, that according to the 
wording of the royal ordinance the whole duchy was to be called Bahia de 
Carabaro, and was actually called Ducado de Corobaro, for instance in the 
royal ordinances signed at Valladolid on the 26th of February, 1528, and that 
it was therefore impossible that the Bahia del Almirante could be left en- 



331 

tirely outside of the boundaries of the said duchy. In fact, it is ahnost cer- 
tain, and the old maps confirm this too, that the geographers of the king 
assumed the course of the coast as being exactly from east to west, and 
that they therefore wanted the twenty-five leguas measured along the 
coast to the western part of the Bahia del Almirante. It is even probable 
that in the controversy between the king and the heirs of Colon the arbi- 
trator only conceived the idea of prescribing twenty-five leguas square for 
the duchy because he desired to include the Bahia del Almirante, and the 
gold mines of Veragua in the duchy, for twenty-five leguas is the very dis- 
tance which in his letter of July 7th, 1503, written in Jamaica, Columbus 
calculated from Carambaru, i.e. Bahia del Almirante, to the gold mines of 
Veragua. The representative of Costa Rica believes that he can derive 
further from other reasons a title for his state to the whole Bahia del Almi- 
rante, inclusive of the eastern part thereof, which to-day, as a rule, is desig- 
nated by the name Laguna de Chiriqui. He asserts that the various ex- 
plorers, basing on the royal order which authorized them to extend their 
occupancy and colonization to the boundaries of the duchy of Veragua, 
also took possession of the districts at the Bahia del Almirante, and had 
founded there colonies, Diego de Artieda having actually been commis- 
sioned to settle one of the three Spanish cities which his contract obliged 
him to found, at the Bocas del Drago, or Bahiadel Almirante. According 
to Peralta, both Corotapa whither Hernan Sanchez de Badajoz was said 
to have penetrated, and also the Valle de Guaymi and the canton of Duy, 
are situated on the shores of the Bahia del Almirante, and he identifies the 
Puerto of San Geronimo with the Bahia del Almirante, and the Rio del 
Guaymi with the Cricamola River, which at the southeastern end of the 
large bay flows into the Lagvina de Chiriqui, and he therefore also places 
the two ephemerous Spanish settlements Castillo de Austria of Father Juan 
de Estrada, and the Ciudad de Artieda, founded by Diego de Artieda, the 
former at the western and the latter at the eastern end of the Bahia del 
Almirante. 

(Note. — The remainder of this article deals with some controverted de- 
tails, and, though interesting, adds no information now pertinent to a gen- 
eral understanding of the dispute.) 



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